WZAVM v Minister for Immigration
[2019] FCCA 131
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVM v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 131 |
| Catchwords: MIGRATION – Judicial review – citizen of Bangladesh – application for Protection (Class XA) visa – decision of former Refugee Review Tribunal affirming Delegate’s Decision to refuse visa – complementary protection – whether applicant required to show risk of significant harm – whether failure to consider integer of claim of significant physical harm – whether failure to afford procedural fairness concerning meaning of political flag – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 422B, 424, 476 |
| CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FLR 496; (2016) 70 AAR 413 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 Minister for Immigration & Citizenship v Applicant A125 of 2003& Anor [2007] FCAFC 162; (2007) 163 FCR 285; (2007) 243 ALR 691; (2007) 98 ALD 246 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 258 ALR 434 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re The Minister of Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBLY v Minister for Immigration & Citizenship [2007] FCA 765 SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 SZRLK v Minister for Immigration & Citizenship [2012] FMCA 1155 SZRUI v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCAFC 80 SZSGA v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCA 774 SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2014] HCASL 126 SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 SZTFI v Minister for Immigration & Border Protection [2015] FCA 322; (2015) 231 FCR 222 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | WZAVM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 2 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 June 2015 |
| Date of Last Submission: | 26 June 2015 |
| Delivered at: | Perth |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Blades |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application filed 6 January 2015, as amended on 28 May 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 2 of 2015
| WZAVM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application for judicial review (“Judicial Review Application”) seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration and Border Protection (“Minister”) to refuse to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision is in the Court Book (“CB”) at CB 166-181, and was marked as Exhibit 1.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Bangladesh, arrived in Australia on 26 July 2012 as an irregular maritime arrival and on 10 September 2012, the Minister lifted the bar under s.46A(2) of the Migration Act permitting the applicant to apply for a Protection Visa: CB 1;
b)on 14 November 2012 the applicant lodged an application for a Protection Visa claiming to fear returning to Bangladesh as he feared being persecuted and killed by the Bangladeshi authorities and the Awami League party (“ALP”) because of his political opinion: CB 39. More specifically, he claimed:
i)he and his family lived in constant fear that the government would arrest them as they were supporters of the Bangladeshi National Party (“BNP”) who oppose the government and the ALP policies, and the government and the ALP were known for killing and kidnapping members of the BNP: CB 38;
ii)his brother fled Bangladesh after receiving threats from the ALP: CB 38; and
iii)in 2009 he was attacked by 4 or 5 people from the ALP, was severely beaten, shot in the legs and left for dead: CB 38-39;
c)on 3 September 2013 the Delegate’s Decision was to refuse to grant the Protection Visa: CB 87-101;
d)an application for review was lodged with the Tribunal on 9 September 2013, and the applicant was invited to provide “material or written arguments”, and his representative subsequently provided submissions on the applicant’s behalf: CB 103-107 and 110-137;
e)on 12 November 2014 the applicant and his representative attended a hearing before the Tribunal (“Tribunal Hearing”), and the applicant gave evidence and the representative presented arguments on the applicant’s behalf: CB 145-146;
f)at the conclusion of the Tribunal Hearing the applicant requested, and the Tribunal allowed, an opportunity for further written submissions to be given and by letter dated 26 November 2014 the applicant provided further written submissions to the Tribunal: CB 147-163; and
g)on 8 December 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 166 and 178 at [59].
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)held that the applicant was not a witness of truth and was not satisfied the applicant told the truth about critical aspects of his claims: CB 170 at [20];
b)stated the applicant had little or no political profile, and that his evidence did not suggest that he held any significant political profile or that he was actively engaged in the types of activities which may have led to harm, and recognised that while there is significant political violence in Bangladesh, did not accept that the applicant would be involved in, or affected by, any such violence, and further did not accept that the applicant’s past activities and profile with the BNP would attract adverse attention from anyone in Bangladesh: CB 170 at [21]-[23] and 175 at [44];
c)found the applicant’s evidence in relation to his claimed political activities and knowledge of the BNP was not persuasive, that his evidence in relation to his support activities for the BNP was very vague and limited, that his oral evidence was inconsistent with his statutory declaration, and noted that the statutory declaration “describes a very different political upbringing and level of support and activity,”: CB 170 at [24] and 171 at [26]-[27];
d)based on country information, found it was not credible that a person who merely votes for the BNP would be forced to leave Bangladesh: CB 172 at [33];
e)noted that the applicant’s inability to recall, with some degree of consistency, the date that the applicant’s brother left Bangladesh reflected poorly on his credibility, and further that it was implausible that the applicant would not have discussed some aspects of his brother’s, or his own, situation in relation to the BNP and threats to their safety given the claimed similarity in their political support and experiences, and that this further undermined the applicant’s claims in relation to his brother’s relationship with the BNP, his brother’s political profile and activity, and his brother’s reasons for leaving Bangladesh: CB 173 at [36];
f)considered that the applicant’s brother’s return to Bangladesh to get married in 2014, noting this was when the ALP was in power, undermined the applicant’s claim that his brother left the country because of threats from ALP members and that he had a profile as an active member or supporter of the BNP: CB 174 at [37];
g)accepted that the applicant was physically attacked in 2009, however, given its concerns in relation to the applicant’s lack of any significant political profile, overall credibility and vague and limited oral evidence in relation to his support activities for the BNP, the Tribunal did not consider the attack was politically motivated, nor did it accept that his injury heightened his political profile or risk of harm: CB 175 at [42]-[43];
h)was satisfied that the applicant may have attended some BNP meetings and rallies, however, found that the applicant did not vote in the 2008 elections, had never been a member or leader of the BNP, and had never held a position or role within the BNP: CB 175 at [43] and 177 at [51];
i)did not accept the applicant’s claim that ALP members continuously ask about the applicant’s whereabouts: CB 168 at [9] and 177 at [51];
j)accepted that the applicant’s family had voted for the BNP, but found that they had not undertaken any other activities in support of the BNP, and did not accept that:
i)they live, or lived, in constant fear;
ii)their political profile increased the risk of harm for the applicant;
iii)the applicant’s brother and father were, or are, members or active members of the BNP; or
iv)that the applicant’s brother left Bangladesh after receiving threats from ALP members: CB 175 at [43];
k)held there was very little chance the applicant would undertake any political activity or support of the BNP if he returned to Bangladesh, and that if he did, such support would be similar to the limited activity undertaken in the past, and therefore did not accept that there was a real chance the applicant would be harmed for reasons of being a failed asylum seeker or suspected of holding anti-regime sentiments, or that he would be:
i)kidnapped for extortion;
ii)viewed with suspicion;
iii)treated as an outsider; or
iv)regarded as having substantial amounts of money which might otherwise lead him to be harmed if he were to return to Bangladesh in the reasonably foreseeable future: CB 176 at [44] and CB 177 at [46]; and
l)there was no real chance the applicant would be harmed if returned to Bangladesh, and that the applicant did not satisfy the criteria in ss.36(2)(a) or (aa) of the Migration Act, and therefore affirmed the Delegate’s Decision: CB 178 at [57]
Judicial Review Application amended
By leave of the Court the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) and supporting affidavit on 28 May 2015. The Amended Judicial Review Application identified three grounds of review, but at hearing ground 2 was not pressed. Grounds 1 and 3 are set out below at [13] and [32] respectively
In support of the Amended Judicial Review Application the applicant filed two affidavits:
a)the affidavit of Michael Kieran Sinclair Fitzpatrick (“Mr Fitzpatrick”) sworn 19 May 2015 (“First Fitzpatrick Affidavit”) annexing a transcript of the Tribunal Hearing (“Tribunal Hearing Transcript”); and
b)the affidavit of Mr Fitzpatrick sworn 12 June 2015 (“Second Fitzpatrick Affidavit”) affirming an error was made in the First Fitzpatrick Affidavit and correcting the error.
The Minister filed the affidavit of Claire Campbell sworn 11 June 2015 (“Campbell Affidavit”) noting discrepancies in the First Fitzpatrick Affidavit. The discrepancies were corrected in the Second Fitzpatrick Affidavit.
In preparing these Reasons for Judgment the Court has had before it all of the filed documents (including the Amended Judicial Review Application, the written submissions of the parties and the affidavits referred to in [6] and [7] above), the Tribunal Hearing Transcript, and the transcript of the hearing of the Amended Judicial Review Application.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may constitute jurisdictional error in the Tribunal Decision: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”); Migration Act, s.422B.
It is for the applicant to make his case and he bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (“VAAD”) at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
The Court has no jurisdiction to engage in merits review, and fact-finding is a matter for the Tribunal, and is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
Ground 1 – failure to consider an integer of a claim
Ground 1 is as follows:
1. The Tribunal made a jurisdictional error by:
a) requiring the applicant to show a Convention nexus to the risk of significant harm he faced in his home country in order to fall within complementary protection under s.36(2)(aa); alternatively
b) the Tribunal failed to consider an integer of the applicant’s claims for protection by failing to consider whether the significant physical harm suffered by the applicant in 2009 gave rise to complementary protection obligations.
Particulars
i. The applicant claimed that he was owed complementary protection obligations, including as a result of a severe attack in 2009 (CB39).
ii. At [40], the Tribunal found that " ... it does accept that he was physically attacked and sustained injuries in 2009."
iii. At [41], the Tribunal held that it " ... is not persuaded by the applicant 's assumption that the attack was politically motivated"
iv. The Tribunal's findings at [49-56] under the heading 'Complementary Protection' exhibit a strong similarity to its earlier findings at [42-48] under the heading 'Refugee Convention'. In particular, at [51-53] the Tribunal makes its findings in the context of political opinion, and at [54] in the context of membership of a particular social group.
v. Further, the Tribunal made no mention of the severe harm previously suffered by the applicant and recognised by it at [40].
Applicant’s submissions
The applicant made the following written and oral submissions in support of Ground 1:
a)it was incumbent on the Tribunal, after considering whether the applicant met the Refugees Convention criterion in s.36(2)(a) of the MigrationAct, to consider the complementary protection criterion in s.36(2)(aa) of the Migration Act;
b)the applicant submitted in his Protection Visa application that he feared significant harm if he was returned to Bangladesh as a result of his imputed political opinion and a severe attack in 2009, and thus was owed complementary protection obligations: CB 39;
c)the Tribunal found, regarding the 2009 attack, that “it does accept that he was physically attacked and sustained injuries in 2009:” CB 175 at [40], and in its findings under the heading “Refugee Convention” the Tribunal held that it “is not persuaded by the applicant’s assumption that the attack was politically motivated:” CB 175 at [41];
d)the Tribunal’s findings under the heading “Complementary Protection” exhibit a strong similarity to its earlier findings under the heading “Refugee Convention”;
e)the Tribunal made its findings under complementary protection in the context of political opinion and in the context of membership of a particular social group which are Refugee Convention grounds: CB 177-178 at [51]-[54], and further made no mention of the severe harm previously suffered by the applicant which had been accepted by the Tribunal at CB 174-175 at [40];
f)the applicant submits that the Tribunal did not consider or make any finding under the complementary protection criterion addressing the applicant’s claim that he was severely attacked in 2009;
g)the applicant provided written submissions to the Tribunal on 20 March 2014 setting out further particulars of the applicant’s claims, in particular political claims based on an imputed political opinion and being an identified member of a social group of asylum seekers returning to Bangladesh, and more so specific reference to the complementary protection criteria;
h)the applicant again provided written submissions to the Tribunal after the hearing on 26 November 2014, a large body of which referred to the complementary protection criterion;
i)the Tribunal essentially replicated its findings in relation to the Refugee Convention, and, therefore, fell into a jurisdictional error by failing to give separate and distinct consideration to whether the applicant’s claims in relation to the 2009 attack that the Tribunal had accepted had occurred to him might have brought him within the complementary protection criteria; and
j)referred to SZRLK v Minister for Immigration & Citizenship [2012] FMCA 1155 at [44] per Smith FM (“SZRLK”):
The tribunal’s own findings left alive a very significant claim that the applicant would face serious and significant harms which might be covered by Australia’s other international obligations and which required careful analysis and full reasons which applied the new statutory provisions.
Minister’s submissions
The Minister made the following written and oral submissions in opposition to Ground 1:
a)the Tribunal was clearly aware of the requirements of the complementary protection criteria, given that in the attachment to the Tribunal Decision the Tribunal set out the requirements for complementary protection, noting that “significant harm” is exhaustively defined in s.36(2A) of the Migration Act: CB 179-181 at [12]-[14];
b)the Tribunal’s consideration of the complementary protection criteria must be viewed in light of the applicant’s actual claims having regard to any evidence and material which it accepted raised a case not articulated: SZSGA v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCA 774 at [49] per Robertson J (“SZSGA”);
c)whilst the applicant did claim that he would suffer significant harm as a result of the attack, the applicant’s evidence in relation to the attack was that:
followers and members of the opposing party felt that he was gradually becoming a threat, the way his involvement with the BNP was increasing day by day and they probably felt he was going to become somebody and therefore they attacked him: CB 174 at [38],
and the Tribunal further noted at CB 174 at [39], that where the applicant lived, he did not have enemies who would want him dead other than his political opponents;
d)in submissions the applicant claimed he would face significant harm as “BNP supporters are vulnerable and subjected to being targeted”: CB 160 and that many have been harmed in violent political clashes such that his claims in relation to both serious and significant harm clearly revolved around his political opinion: CB 160-163;
e)there is no jurisdictional error committed by a Tribunal when it refers to (or in this case expresses similar conclusions on) previous findings of fact under the complementary protection provisions as articulated particularly where:
i)those claims could not survive earlier findings of fact; and
ii)the Tribunal addresses the criterion by reference to the language of the statute and its particular findings of fact which led to the conclusion that the Tribunal did not accept the applicant’s claims: SZSGA at [56]-[57] per Robertson J;
f)in SZSGA it was claimed that the harm was because of a particular set of circumstances, being a fear that people were going to attack the applicant in SZSGA there because of money that had been lent to him and that he had not then spent properly, and because the Tribunal was not satisfied on that element, it did not need to re-consider that particular finding for the purposes of complementary protection;
g)the Tribunal in its paragraphs which “exhibit a strong similarity,” being CB 175 at [43] and 177 at [51], did not make findings in relation to serious or significant harm, rather made findings in relation to the factual aspects of the applicant’s claim that formed the basis for his feared harm;
h)the Tribunal was not required to consider the “severe harm previously suffered” once it had rejected the applicant’s claim that the attack was not politically motivated as the applicant made no claim, nor did the evidence give rise to a claim raised, that he feared he would suffer significant harm as a result of generalised violence or as a result of the previous attack other than in terms of his political opinion;
i)the way in which the claim was put with respect to the attack in 2009 was that the applicant was attacked because of his membership of the BNP, and his understanding that the only people who would have attacked him would have been ALP members, and this is his fear of significant harm; and
j)the claims with respect to complementary protection arise from the claim in relation to his high profile as a member of the BNP.
Ground 1 – consideration
The Tribunal expressly referred to the applicant’s claim regarding the 2009 attack, and accepted that the 2009 attack did occur: CB 174-175 at [40]. More fully, the Tribunal found at CB 174-175 at [40]-[41] as follows:
40.The tribunal notes the applicant gave generally consistent evidence about the details of the attack to that recorded in his statutory declaration. It also notes the decision record refers to medical reports provided to the department at the applicant’s interview indicating he was being treated for vascular malformation. While the tribunal has concerns in relation to the applicant’s credibility it does accept that he was physically attacked and sustained injuries in 2009. However, when asked if he knew the individuals that attacked him, the applicant told the tribunal he did not because it happened at night and he could not see properly, although he does believe it was politically motivated because he sees no reason for anyone else to attack him in a vicious manner that would have killed him other than for political reasons.
41.The tribunal notes the applicant has no direct evidence, such as a threat or the identity of the attackers, to support his assumption the attack was politically motivated. Given the tribunal’s concerns in relation to the applicant’s lack of any significant political profile, overall credibility and his vague and limited oral evidence in relation to his support activities for the BNP, the tribunal is not persuaded by the applicant’s assumption that the attack was politically motivated.
In the Tribunal Decision at CB 177-178 at [51]-[53] the Tribunal observed that:
51. The tribunal finds the applicant is not and has never been a member or leader of the BNP, and has never held a position or role within the BNP. The tribunal finds the applicant has not undertaken any activities for or with the BNP since leaving Bangladesh and is not involved with the BNP in Australia. While the tribunal accepts the applicant's family has voted for the BNP, it finds they have not undertaken any other activities in support of the BNP and the tribunal does not accept that that they lived or live in constant fear of being arrested at any time, or that their profile increases the risk of harm to the applicant. The tribunal does not accept that applicant’s brother and father were or are members or active members of the BNP, and the tribunal does not accept the applicant's brother left Bangladesh after receiving threats from AL members. The tribunal does not accept that the applicant was attacked by AL members or supporters or that the attack was motivated by the applicant's political activity or support for the BNP or any imputed political opinion. The tribunal does not accept that AL members continuously ask about the applicant's whereabouts.
52. The tribunal does not accept that the applicant's past activities with the BNP would attract any adverse attention of anyone in Bangladesh. While the tribunal considers there is very little chance the applicant would undertake any political activity or support of the BNP if returned to Bangladesh, given he has not undertaken any activities for or with the BNP since leaving Bangladesh and is not involved with the BNP in Australia, the tribunal considers if he did undertake any political activity or support of the BNP, that support would be similar to the limited activity [he] has undertaken in the past. The tribunal accepts the DFAT Country Report Bangladesh (20 October 2014) assessment that supporters or member of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations.
53. The tribunal does not accept that if returned to Bangladesh there is a real risk the applicant would be harmed or killed by the Bangladeshi authorities and the Awami League party, or that he will be in danger and have to join the party again and will have the same problems as before. The tribunal does not accept there is a real risk the applicant will be continuously targeted for being aligned with the BNP, or arrested for a crime he did not commit or captured in a targeted attack for being a supporter of the BNP. The tribunal does not accept he would be recognised for his past support/membership of the BNP or that he will be harmed on the basis of his imputed political opinion or the political opinion of his family.
The complementary protection provision in s.36(2)(aa) of the Migration Act provides that:
“A criterion for a protection visa is that the applicant for the visa is:
…
(aa) 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;”
and s.36(2A) of the Migration Act refers to significant harm as meaning that an applicant will be arbitrarily deprived of their life, subjected to the death penalty, torture or cruel, inhuman or degrading treatment or punishment.
Where the Tribunal fails to consider a component integer of an applicant’s claim to meet the criteria of a Protection Visa, that failure will constitute a jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. There must also be evidence that the Tribunal has engaged in an active intellectual process such that the applicant must not be left to guess what role a particular issue played, if any, in facts found in the Tribunal Decision: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ (“Lafu”).
In the applicant’s original claim when asked the specific question as to why he believed he would suffer significant harm his response was as follows:
Myself and my family are supporters of the BNP party. I was attacked severely before by members of the Awami league. They thought I was dead that is why they left.
In submissions prior to the Tribunal Hearing in relation to complementary protection the applicant (through his representative) made submissions that:
a)claimed significant harm arising from arbitrary deprivation of life by reason of a fear that if returned to Bangladesh the police, acting under the direction of the ALP and its supporters, would attack him “on the basis of his support for the BNP”, and that the applicant’s father and brother are known for their political affiliations within their area, and that “increases the likelihood … [of] a politically motivated attack” on the applicant: CB 135;
b)he was likely to face significant harm from torture if returned to Bangladesh because country information indicated that BNP members are often attacked in punishment for their support of the old regime, and that the applicant fears a physical attack similar to that on his brother which was so severe that the brother spent a significant period in hospital: CB 135;
c)he would face significant harm arising from cruel and inhuman treatment or punishment upon his return on the same basis as he claimed that he would be tortured upon his return: CB 135-136; and
d)he would face significant harm arising from degrading treatment or punishment arising from his “westernisation”, and his accent and ability with English which would lead him to be treated with suspicion, and that that unreasonable treatment would cause him humiliation: CB 136.
During the Tribunal Hearing the Tribunal asked the applicant to explain why the 2009 attack must have been as a result of his political opinion, and his response was that “because I don’t see any reason for anyone else to attack me in a vicious manner to kill me except for political reasons”: Campbell Affidavit, Annexure CAC-1, p.13 (emphasis added).
The written submissions provided by the applicant to the Tribunal after the Tribunal Hearing:
a)reiterate that the applicant was attacked in 2009 for his political stance: CB 157-158; and
b)did not make a complementary protection claim on the basis of a fear of attack based on generalised violence in Bangladesh, but rather claimed a fear of harm arising from the applicant’s political opinions and support of the BNP: CB 160-162.
The applicant referred to SZRLK in support of this ground. SZRLK is restricted to its facts, and does not assist the applicant in any event as in that case there was a failure to consider an integer of the claim, whereas here, ultimately, there is not such a failure.
In SZTFI v Minister for Immigration & Border Protection [2015] FCA 322; (2015) 231 FCR 222 (“SZTFI”) the Federal Court was considering if the Tribunal had failed to address the applicant’s claims of being a spy under the complementary protection regime, and whether the Tribunal had conflated the tests of persecution and complementary protection: SZTFI at [55] per Perram J. In SZTFI at [56]-[57] per Perram J the Federal Court said:
56 However, I accept, as the Minister submitted, that the reasons given at [19] of the appellant's submissions do not correlate with any “substantial, clearly articulated claim” by the appellant; nor is it a claim which squarely arose on the material before the Tribunal. In this regard it is relevant to take into account that the appellant was legally represented before the Tribunal and made detailed submissions as to the basis on which he claimed to fear harm if returned to his country of nationality: SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [37] (Robertson, Griffiths and Perry JJ).
57 I also agree with the primary judge that the Tribunal was correct to view the spy claim as being based only on the appellant's concerns that he would be imputed with a political opinion hostile to the regime of the country of nationality. As the primary judge held, the Tribunal did not erroneously assess the spy claim only by reference to the Convention criteria; rather all of the appellant's claims for protection, Convention based and for complementary protection, were ultimately based on the appellant's fear of being imputed with political opinions hostile to the regime of his country of nationality. In these circumstances, the Tribunal was entitled to proceed on the basis that the appellant's claims to fear persecution as a spy failed for the same reasons as his claim to fear being imputed with an anti-regime political opinion in the context of his Convention claim.
It is significant that in relation to the Protection Visa application the applicant was represented by a firm of lawyers throughout: with solicitors and a director of the law firm, who were also registered migration agents, acting for the applicant, filing documents (including his submissions) on his behalf, and appearing for him at the Tribunal Hearing: see CB 1, 14, 37, 102, 105, 137, 145, 147 and 163.
It is also significant that:
a)at all times, namely in his original statutory declaration, in submissions prior to the Tribunal Hearing, in his evidence to the Tribunal, and in post Tribunal Hearing submissions, the applicant specifically attributed his fear of harm of violence to attacks by the ALP and its supporters, and that at no stage did he make a claim of a fear of harm based on being attacked because of generalised violence in Bangladesh; and
b)applicant in the Tribunal Hearing specifically stated and remained adamant his attackers were the ALP and he restricted his claim to fear harm from the ALP or on the basis of his political opinion.
The Tribunal, referring to the evidence provided by the applicant and country information, considered the applicant’s claim to the extent it was obliged to, and the applicant’s evidence that he does not believe there could be any other reason for such harm other than for “political reasons”: see [22] above, was of itself sufficient to relieve the Tribunal of any requirement to consider a claim of a fear of harm as a result of generalised violence in Bangladesh. Further, and in any event, there was no substantial or clearly articulated claim that the applicant fears harm as a result of generalised violence in Bangladesh. The Tribunal did not accept that the applicant was attacked because of his political opinion: CB 175 at [43] and 177 at [52]. That was a factual finding that was reasonably open to the Tribunal on the material before it and in light of its concerns about the applicant’s credibility.
The Tribunal does not commit jurisdictional error in referring to previous findings of fact made when engaged in “Refugee Convention related thinking” when considering the complementary protection provisions where it does so “by reference to the language of the statute and by reference to its particular findings of fact”: SZSGA at [54]-[56] per Robertson J. The High Court in SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2014] HCASL 126 refused special leave to appeal from SZSGA.
The applicant raised the 2009 attack in the context of him claiming to fear harm on the basis of his political opinion: cf SZTFI at [57] per Perram J. The applicant did not claim to fear harm on the basis of generalised violence. When read in its entirety, the Tribunal Decision does demonstrate the Tribunal intellectually engaged with the applicant’s claims: Lafu at [47]-[54] per Lindgren, Rares and Foster JJ, and considered the applicant’s claims actually made in the context of the complementary protection provisions in the Migration Act, and specifically the risk the applicant will face if returned to Bangladesh, and was not satisfied the applicant met the criteria in s.36(2)(aa) of the Migration Act.
The Court finds that no jurisdictional error arises in relation to Ground 1.
Ground 3 – denial of procedural fairness
Ground 3 is as follows:
3. The Tribunal failed to accord procedural fairness to the applicant in questioning him about the particular meaning of symbols on the flag of the Bangladeshi National Party.
Particulars
i. The transcript (transcript affidavit page 15-16) shows:
a) The Tribunal asked the applicant "Can you tell me about the BNP flag?"
b) The applicant replied “I know the symbol is a strand of rice paddy. I do not know about their flag. Flag is just one in Bangladesh. But the symbol is a bunch of rice."
c) The Tribunal further asked "They have a specific flag, can you tell me about that?"
d) The applicant replied “I do not understand”
e) The Tribunal further asked “Well the BNP as a party has a flag and particular parts of the flag have a particular meaning and I was wondering whether you could tell me what they mean."
ii. The transcript (transcript affidavit page 18) shows the Tribunal told the applicant "you were also unable to tell me about the flag of the party. This is what concerns me about your claims of being a supporter of the party when you don't have much knowledge of their principles or flag." The applicant replied "I never felt the importance of these things when I grew up and did not pay attention to them."
iii. The Tribunal held at [25-26] that the applicant's oral evidence, as stated above, inability to describe the BNP flag and inability to identify the symbols "reflected poorly upon his credibility and the reliability of his claims."
iv. The flag of the BNP does not appear in the court book and was not shown to the applicant at the hearing.
v. In circumstances where the applicant required the use of an interpreter, had demonstrated familiarity with the symbolism of the BNP, but had repeatedly told the Tribunal he did not understand its questions in relation to the BNP flag, to ask the applicant the particular meaning of particular parts of the BNP flag and to attach weight to his responses without showing the flag to the applicant was procedurally unfair.
Applicant’s submissions
The applicant made the following written and oral submissions in support of Ground 3:
a)an integral part of the applicant’s claim was his BNP membership, and the Tribunal was concerned with the applicant’s knowledge of the BNP and tested the applicant’s understanding of the principles of the BNP and the BNP flag: First Fitzpatrick Affidavit, page 18;
b)the Tribunal held that the applicant’s oral evidence, in particular his inability to describe the BNP flag and inability to identify the symbols “reflected poorly upon his credibility and the reliability of his claims”: CB 171 at [26];
c)during the Tribunal Hearing the Tribunal had the following exchange with the applicant: First Fitzpatrick Affidavit, pages 15-16:
Tribunal Member: Can you tell me about the BNP flag?
Applicant: I know the symbol is a strand of rice paddy. I do not know about their flag. Flag is just one in Bangladesh. But the symbol is a bunch of rice
TM: They have a specific flag, can you tell me about that?
Applicant: I do not understand.
Tribunal Member: Well the BNP as a party has a flag, and the flag has particular… parts of the flag have a particular meaning and I wanted to know whether you know about the flag, whether you can describe the flag to me and whether you can tell me what the flag means… parts of the flag means.
d)the Tribunal told the applicant “You were also unable to tell me about the flag of the party. This is what concerns me about your claims of being a supporter of the party when you don’t have much knowledge of their principles or flag.” The applicant replied “I never felt the importance of these things when I grew up and did not pay attention to them”: First Fitzpatrick Affidavit, page 18;
e)the Tribunal accepted that the applicant had the knowledge of the paddy rice as a symbol of the BNP, but it still found that “the applicant’s oral evidence is different to his statutory declaration”: CB 171 at [26];
f)in SZBEL at [26] and [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ the High Court said:
26. It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:
[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [‘to correct or contradict any relevant statement prejudicial to their view’] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. (Emphasis in original).
…
[32] It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material;
(Emphasis added);
g)the material used to make a credibility finding against the applicant was, to a significant extent, the BNP flag and the applicant’s knowledge of the “particular parts of the flag” which have a “particular meaning”. The flag of the BNP does not appear in the CB and was not shown to the applicant at the Tribunal Hearing, furthermore the Delegate did not raise with the applicant any discussion about the applicant’s knowledge of the BNP flag;
h)the applicant was not provided with the opportunity to answer the Tribunal’s questions about particular aspects of the BNP flag whilst having the BNP flag before him and it was unfair to expect the applicant to visually recall each part of the BNP flag and explain their meaning without the BNP flag being produced in front of him, and thereby the applicant was unable to ascertain the issues regarding the BNP flag which negatively impacted on his credibility in the eyes of the Tribunal;
i)in circumstances where the applicant required the use of an interpreter, had demonstrated familiarity with the symbolism of the BNP, but had repeatedly told the Tribunal he did not understand its questions in relation to the BNP flag, to ask the applicant the particular meaning of particular parts of the BNP flag and to attach weight to his responses without showing the BNP flag to the applicant was procedurally unfair;
j)the Tribunal is entitled to vigorously test the applicant’s knowledge of various things that relate to his claims and where a person claims to have political involvement, the Tribunal can access country information and test the applicant’s knowledge of the particular political group he claims to be aligned with through reference to that independent country information;
k)the Tribunal has gone further and put specific questions to the applicant in a very particular way about an abstract diagram of which he claims to have no knowledge, and it is not clear if the Tribunal was, in fact, referring to something that is the actual flag of the BNP as it is not in the CB, and upon an objective review of the Tribunal Decision or of the Tribunal Hearing transcript there is nothing to indicate what it was the Tribunal was actually putting to the applicant for comment;
l)this might not be a problem if the Tribunal tried this as a technique to test his knowledge and found that the political knowledge was wanting, but in this case the Tribunal has put a specific question repeatedly to the applicant, pressuring the applicant to answer questions about the BNP flag, which is an abstract concept that the applicant could not possibly understand; and
m)the issue could not be cured by a post-hearing submission, because in making the Tribunal Decision the Tribunal is reliant on evidence from the applicant adduced through the statutory declaration or through oral evidence given at the Tribunal Hearing, and the deficiency cannot be cured simply by the applicant’s agent saying something about the process or something about the BNP flag.
The Minister made the following written and oral submissions in opposition to Ground 3:
a)contrary to what is contended in Ground 3, particular (v), the applicant did not “repeatedly” tell the Tribunal that he did not understand its questions in relation to the BNP flag;
b)an examination of the versions of the Tribunal Hearing transcripts in the First Fitzpatrick Affidavit and Campbell Affidavit demonstrate that the applicant said once in respect to a question about the BNP flag – “I do not understand”. His other answers to questions about the BNP flag were not that he did not understand the question, but that he did not know the answer to it: Campbell Affidavit, Annexure CAC-1, page 20:
Tribunal: You were also unable to tell me about the flag of the party. This is what concerns me about being a supporter of the party when you don’t appear to have much knowledge of their principles, their flag.
Applicant: I never felt the importance of these things while I was growing up and therefore did not pay attention to them. That is why there has been a lack in my knowledge so yes you may feel like that but that is what it was.
c)the characterisation of the Tribunal’s findings as contended in Ground 3, particular (iii) seeks to place greater weight on the Tribunal’s questioning of the applicant about the BNP flag than is actually apparent from a reading of those paragraphs in their entirety. The discussion at CB 170-172 at [24]-[32] of the Tribunal Decision is headed “Lack of knowledge of the BNP”, and:
i)at CB 170 at [24] the Tribunal stated that it “did not find the applicant’s evidence in relation to his claimed political activities and knowledge of the BNP to be persuasive”;
ii)at CB 170-171 at [25] the Tribunal noted a number of matters, including that the applicant did not know the meaning of the symbols on the BNP flag;
iii)at CB 171 at [26] the Tribunal referred to the evidence in the applicant’s statutory declaration as opposed to the evidence at hearing and found that the evidence “describes a very different political upbringing and level of support and activities to that described in the applicant’s statutory declaration and the first written submission”;
iv)at CB 171 at [27] the Tribunal discussed the activities the applicant undertook while in Bangladesh;
v)at CB 171 at [28] the Tribunal discussed the lack of continued involvement with the BNP since leaving Bangladesh; and
vi)at CB 171-172 at [29]-[31] the Tribunal discussed the issues with respect to whether the applicant and his family were supporters or members of the BNP;
d)it was not just the BNP flag which was an issue for the Tribunal, and to characterise the finding of credibility as just being made on this issue of the BNP flag is a misreading of the Tribunal Decision as the Tribunal goes through a number of different issues as to why it had concerns about what the applicant had said in his original statutory declaration;
e)based on a consideration of the combination of those inconsistencies, including the lack of knowledge about the principles and symbols of the BNP, the Tribunal made a finding that the lack of knowledge reflected poorly on the applicant’s credibility and reliability, and the Tribunal then went on to discuss other issues it had with respect to the applicant’s apparent lack of knowledge and political activities with the BNP. All of these elements or issues led to the conclusion reached by the Tribunal that it reflected poorly “on the credibility of his claim that he grew up supporting the BNP and learning its principles from his father”: CB 172 at [32];
f)in circumstances where the country information suggested that the risk of harm was in respect of persons who are “actively involved” or have a significant political profile: CB 170 at [21]-[23], the Tribunal was entitled to test the claims of the applicant with respect to the degree of involvement with the BNP;
g)it is contended that the failure to show the applicant the BNP flag was “procedurally unfair”, but beyond alleging it is “procedurally unfair” the applicant’s submissions do not explain why showing the BNP flag to the applicant would have made the questions procedurally fair, yet its absence is said to have made it so;
h)put simply, the applicant claimed to have grown up supporting the BNP and “learning its principles from my father”. The Tribunal’s testing of that claim and the reasons as to why it was testing those claims were made apparent to the applicant in the course of the Tribunal Hearing: Campbell Affidavit, Annexure CAC-1, pages 16, 18 and 20;
i)the approach the Tribunal took in raising the issues and the apparent inconsistencies with the applicant, and giving the applicant an opportunity to address those apparent inconsistencies, conforms with the requirement of procedural fairness enunciated in SZBEL;
j)after the Tribunal Hearing had concluded and after the issues regarding the BNP flag had been raised with the applicant on two occasions during the Tribunal Hearing, the applicant was given a two week opportunity to provide further submissions on the issues the Tribunal had raised. The applicant’s further written submissions make no reference to the BNP flag or the BNP principles: CB 147-163;
k)even if the Tribunal did not afford the applicant procedural fairness during the Tribunal Hearing by not showing the BNP flag, which is not conceded, any defect from that apparent omission is cured by the further opportunity afforded the applicant to address those issues; and
l)nothing is revealed from an examination of the Tribunal Decision or the Tribunal Hearing transcript demonstrating that the Tribunal’s approach to these issues gave rise to jurisdictional error: SZRUI v Minister for Immigration & Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”); SZBLY v Minister for Immigration & Citizenship [2007] FCA 765 at [25] per Cowdroy J;
Ground 3 – Consideration
The Tribunal’s questioning during the Tribunal Hearing, and the applicant’s evidence, in relation to the BNP principles and flag, included the following:
Tribunal: Can you tell me the four main principles of the BNP?
Applicant: What kind of principles?
Tribunal: There are main principles of the BNP, and there are four of them. Can you tell me what they are?
Applicant: I don't really understand the question.
Tribunal: Okay well, the BNP have four main principles and they publish information about those principles and -those principles are on their website. Can you tell me what they are?
Applicant: I know they believe in democracy, but I won’t be able to tell you the others. I don't recall. I don't have the knowledge.
Tribunal: Can you tell me about the BNP flag?
Applicant: I know that the symbol is a strand of rice paddy. But I do not know about their flag. Flag is just one in Bangladesh. But the BNP symbol is a bunch of paddy or bunch of rice.
Tribunal: Well they have a specific flag, can you tell me about that flag?
Applicant: I don't understand.
Tribunal: Well the BNP is a party and the flag ... parts of the flag have a particular meaning and I was wondering whether you could tell me what they mean.
Applicant: No I won't be able to answer that because I do not know.
Campbell Affidavit, Annexure CAC-1, page 13, and see also the extract from page 20 at [34(b)] above.
In the Tribunal Decision at CB 170 at [25]-[26] and 172 at [32] the Tribunal noted:
25. When asked what the four main principles of the BNP were, the applicant told the tribunal he did not really understand the question. The tribunal noted that published information in relation to the BNP, including information on the BNP website, refer to four main principles. The applicant told the tribunal the BNP believes in democracy but he cannot tell about the others as he does not have the knowledge. When asked about the BNP flag the applicant told the tribunal the-BNP symbol is a bunch of rice. When asked again about the BNP flag, the applicant said he did not understand the question. The tribunal noted the BNP has a flag which has particular symbols with specific meanings. The applicant told the tribunal he is not able to answer the question because he does not know.
26. …While the applicant was able to identify democracy as one of the party principles and the sheaf of paddy rice as a symbol, the tribunal is concerned that the applicant's oral evidence is different to his statutory declaration and describes a very different political upbringing and level of support and activity to that described in the Applicant's statutory declaration and the first written submission. The tribunal considers this reflects poorly on the applicant's credibility and the reliability of his claims.
32. In isolation, the tribunal would not give this confusion much weight, but in light of the tribunal's other credibility concerns, the tribunal considers the applicant's confusion about the distinction between a supporter and member of the BNP indicates a limited knowledge of the BNP and reflects poorly on the credibility of his claim that he grew up supporting the BNP and learning its principles from his father.
In the applicant’s statutory declaration in support of the Protection Visa application he said:
a)at CB 38:
I grew up supporting the BNP party and learning its principles from my father. I used to attend most of the party’s demonstrations in our area opposing the government. I also used to attend meetings with members of the party to discuss the demonstrations times and its content.
b)at CB 114 in submissions prior to the Tribunal Hearing:
The Applicant instructs that his family are also supporters of the Bangladesh National Party (BNP) and have been for the entirety of the Applicant’s life. The Applicant instructs that he grew up supporting the BNP and learning about its principles from his father.
…
The Applicant claims that he used to attend the party’s demonstrations in their local area which were in opposition of the government and he used to attend meetings with the members of the party to discuss demonstration times and the content of the demonstrations also.
In respect of the Tribunal gathering information on the BNP principles and flag, the Tribunal is empowered to seek information under s.424 of the Migration Act. By virtue of s.424 of the Migration Act the Tribunal was mandatorily required to “have regard to the information”, such that the Tribunal was “to take into account” and “consider” the information and responses from the applicant when making its findings: Minister for Immigration & Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489; (2009) 258 ALR 434 at [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 at [62] per Bennett J.
It was pressed at hearing that the BNP flag, or the flag that the Tribunal was referring to, was not in the Court Book, and to that extent there was no indication upon an objective review of the Tribunal Decision, or of the Tribunal Hearing transcript, to indicate what it was that the Tribunal was actually putting to the applicant for comment. This was a case in which the applicant purported to be a BNP supporter whose political opinion caused him to fear harm from political opponents in Bangladesh, in circumstances where the applicant’s BNP knowledge had been instilled into him as he “grew up”, so he claimed, by his father and from his attendance at BNP meetings at which demonstration times and plans were made: CB 38 and 114. In those circumstances, it was fair for the Tribunal to ask the applicant, in a general way, about his knowledge of the BNP flag. When the Tribunal did so the applicant said that he “… [did] not know about their flag”: see [33] above. Then, again quite fairly, the Tribunal was more specific and suggested to the applicant that there were parts to the BNP flag that had particular meaning, but that elicited no informed response from the applicant, and the reason for that was, as the applicant said “because I do not know”: see [35] above.
Contrary to the submissions of the applicant, the applicant did not repeatedly say that he did not understand the questions concerning the BNP flag, but rather said once that he did not understand a question about the BNP flag, but upon further questioning the applicant admitted that he did not know about the BNP flag, that is that he did not have knowledge of the BNP flag: see [35] above. The same process, with the same answers (in effect) were given in relation to questions concerning the BNP principles: firstly, a claim that the question was not understood, and when asked again in a general way, an acknowledgement that the applicant did not have knowledge of the BNP principles (save for asserting that one of them was democracy): see [35] above. The fact that the applicant admitted, not once, but twice, that he “… [did] not know” about the BNP flag, or its parts or its meaning, relieved the Tribunal from any obligation to show the applicant the BNP flag being referred to by the Tribunal. The applicant, surprisingly in view of his assertion to have grown up being instilled with the BNP principles from his father and being a BNP supporter who helped plan, and then attended demonstrations, and who now claims to fear harm because of his political opinions, did not know about the BNP flag, and the Tribunal was entitled to use that information when making findings concerning the applicant’s claims.
The applicant was given the opportunity to make further submissions following the completion of the Tribunal Hearing, and it is significant that there is no explanation for what the applicant did say about the BNP flag, and, indeed, no comment about the BNP flag at all. There is no alternative explanation proffered for the applicant’s lack of knowledge of the BNP flag: for example, it is not said that there is no BNP flag, or that there is some good reason why the applicant would not have been exposed to the BNP flag. The applicant, who was represented by lawyers who were registered migration agents at all times including the Tribunal Hearing and for the purposes of making post Tribunal Hearing submissions, failed to take any issue at all in the post Tribunal Hearing Hearing submissions with a want of procedural fairness in relation to the questioning on the BNP flag, or to otherwise seek to explain his lack of knowledge of the BNP flag, or to submit that the Tribunal was in error, either in relation to the existence of a BNP flag at all or in relation to it having constituent parts with particular meaning, or any meaning at all, when given the opportunity to do so in those post Tribunal Hearing submissions.
In all the above circumstances, the failure to put the BNP flag before the applicant at the Tribunal Hearing did not give rise to a denial of procedural fairness. Likewise, there was no denial of procedural fairness by reason of a refusal to acknowledge a lack of understanding by the applicant of the questioning concerning the BNP flag. Having said that he did not understand the question, his position was clarified by saying that he did not know about the BNP flag. There is nothing to indicate that that acknowledgement came about by anything other than questioning of the most general kind, and certainly not questioning in the face of repeated assertions of a lack of understanding by the applicant, or questions which in any way exerted pressure, or were designed to exert pressure, upon the applicant. There was no claim to that effect, for example, in the post hearing submissions made by the applicant’s representatives. In all the above circumstances, there was no failure to accord procedural fairness to the applicant in relation to his questioning about the BNP flag, or the meaning of the BNP flag.
The questions put by the Tribunal about the BNP flag and the BNP principles also need to be set in their proper context by reference to what occurred at the Tribunal Hearing. An examination of the Tribunal Hearing transcript shows that the Tribunal raised many and significant concerns with the applicant about inconsistencies in his evidence and claims made before the Tribunal, and in the materials before the Tribunal, as can be seen from the following extracts from the Tribunal Hearing transcript: see Campbell Affidavit, Annexure CAC-1, at pages 15-20:
Tribunal: The reason I am talking about this again as I said before is because I have looked over the website during the break and could not find any information about these two candidates. I'll certainly continue to look due to the variation of the names but I am concerned that I wasn't able to find them. I do want to discuss with you other concerns about whether you are telling me the truth or not. These are concerns [which] made me question whether you were a supporter of the BNP and whether you are telling me the truth in relation to your claims. The first is in relation to some inconsistences between your oral evidence today and statutory declaration that accompanied your application. In your statutory declaration you said your family weren’t members of the party, there were supporters of the party. Sorry, that was in your oral evidence today you said that your family weren't members of the party; they were supporters of the party. Which is consistent with -what you said in your statutory declaration which you say is my family are supporters of the BNP in Bangladesh. You go on to say that the BNP is the opposition party and it opposes the government and the Awami League party policies. The next part of the declaration is what concerns me, you say we live in constant fear because the government could come and arrest our family members at any time. You say the Bangladeshi authorities and the Awami League party are known for killing and kidnapping members of the BNP party. So on the one hand you say your family are only supporters of the party but on the other hand you say your family is in constant fear because the Awami League and the authorities are known for kidnapping and killing members of the party…
Tribunal: My concern in that in your statutory declaration and in your oral evidence you say you are a supporter of the party because your family is a supporter of the party and you grew up supporting the party. I would expect a person with that background to have known the difference between a member of the party and a supporter of the party. Is there anything you would like to say about that?...
Tribunal: Okay as I said I am a bit concerned that you are confused about that since you claim you were a supporter of the party for most of your life and that was because your family were supporters of the party. I would expect someone with that sort of background to know the difference. My concern is that in your statutory declaration you say your brother is an active member of the party 10 years ago. When I asked you during the hearing about whether your brother was a member of the party you said "not that you know"…
Tribunal: One of the things that I have-had a question about as well is that in your statutory declaration you said your brother left the country around 10 years ago because of threats received from the Awami League members. Yet from what I can tell from the country information 10 years ago the BNP was in power. Why would he leave the country if he was a supporter of a party who was in power?...
Tribunal: I appreciate that and I will take that into consideration. Why I bring your brother up is that because there has been a suggestion in the submissions made by your representatives that it's also in relation to a connection to your family, you are a supporting family and that is what makes a difference in your case. One of my other concerns is that in the statutory declaration you state you grew up supporting the BNP party and learning it's principles from your father. Yet when I asked you today about the main principles of the party you said democracy but could not name the other main principles. That raises a concern that you are not telling me the truth in relation to your upbringing and your father's teaching of you in relation to the principles of the party….
Tribunal: You were also unable to tell me about the flag of the party. This is what concerns me about your claims of being a supporter of the party when you don't appear to have much knowledge of their principles, their flag….
Tribunal: The other thing in relation to that which we discussed earlier which was open to you to become a member of the party according [to] the constitution once you turned 18 but you didn't do that…
Tribunal: That is not what you told me before. You told me you didn't do it because you didn't have the maturity and the knowledge to become a member…
…One of my other concerns is that you did tell me that you didn't vote in 2008. I would expect a person with the background that you claim to have in relation to growing up in a family that supports the BNP and learning its principles from your father that you would have voted.
The inconsistencies in the applicant’s evidence, apart from the BNP flag issues, were set out in detail by the Tribunal in the Tribunal Decision at CB 170-172 at [24] and [26]-[31], and are adequately summarised in the Minister’s submissions at [15] and [34] above, and demonstrate that the applicant’s responses with respect to the BNP flag were but one of a number of evidentiary inconsistencies upon which the Tribunal relied for the making of adverse credibility findings, and even without the applicant’s evidence concerning the BNP flag, there was sufficient alternative and independent evidence of inconsistencies in the applicant’s evidence to provide a basis for the Tribunal to make adverse credibility findings concerning the applicant’s evidence.
This is not a case where the Tribunal finding on credit was based on a minor fact used for the rejection of the entirety of the applicant’s evidence and his Protection Visa application as discussed in SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 (“SZSHV”) at [31] per Flick J (which, subsequent to the hearing, was approved by the Full Federal Court in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 253 FLR 496; (2016) 70 AAR 413 at [41] per McKerracher, Griffiths and Rangiah JJ). The Tribunal referred to a number of inconsistencies between the applicant’s oral evidence, his statutory declaration and the country information, such that it did not consider the explanations offered by the applicant to the concerns raised were sufficient to demonstrate the applicant was a person who would be subjected to significant harm and persecution as a result of his political opinion.
The Tribunal is entitled to vigorously test an applicant’s claims: SZRUI at [4] per Allsop CJ and at [33] per Flick J. Credibility findings are findings of fact, and as such are generally matters for the Tribunal: Re The Minister of Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J, but adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis, that is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706; at [17] per Jacobson J; SZSHV at [27]-[31] per Flick J. In this case, there were plainly logical and rational reasons for the Tribunal to doubt the applicant’s credibility. Those reasons included, but were certainly not limited to, the applicant’s answers to the questions about the BNP flag. The Tribunal raised its concerns about the applicant’s credibility at the Tribunal Hearing, and also explained that the applicant’s credibility was under examination as a consequence of his answers concerning the BNP flag, but more particularly, the other matters put to the applicant by the Tribunal (as to which, see, for example, [43] above): CB 172 at [32]. Having regard to what was said at the Tribunal Hearing the Court is of the view that it was sufficiently indicated to the applicant that everything that he was saying in relation to his BNP political affiliations was being questioned and put in issue by the Tribunal, and as such there was no denial of procedural fairness: SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Minister for Immigration & Citizenship v Applicant A125 of 2003 & Anor [2007] FCAFC 162; (2007) 163 FCR 285; (2007) 243 ALR 691; (2007) 98 ALD 246 at [88]-[89] per Emmett, Weinberg and Lander JJ.
In all of the above circumstances, the allegation that there was a denial of procedural fairness in relation to the questioning of the applicant in relation to the BNP flag is not made out.
The Court finds no jurisdictional error is established by Ground 3.
Conclusion
The Court has concluded that neither of the grounds relied upon have been made out, and the Tribunal Decision is not affected by jurisdictional error. There will therefore be an order dismissing the Amended Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 25 January 2019
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