APS16 v Minister for Immigration and Border Protection

Before the Tribunal 7 On 6 November 2014, a week after the delegate's decision, the appellant filed an application for review to the then Refugee Review Tribunal which was a part of the Administrative Appeals Tribunal from 1 July 2015. 8 The appellant was invited to appear before the Tribunal on 2 March 2016 to give evidence and present arguments in support of the review application. He was represented by a registered migration agent. He also provided, as requested, a submission dated 29 February 2016 in support of his review application. 9 The appellant's written submission claimed, inter alia, that: (1) political affiliation is a critical survival tool in daily life in Bangladesh and that party membership provides a social network, protection and identity; (2) the appellant's claims were consistent with country information concerning political affiliation and activity and that he should be given the benefit of the doubt in regards to his party membership; (3) the appellant should, in effect, be given the benefit of the doubt in relation to minor inconsistencies in his account of the incident with his neighbour; and (4) because of the lack of effective State protection throughout Bangladesh it would be impractical and unreasonable to expect the appellant to relocate to another part of that country. 10 The Tribunal found the appellant to be an extremely poor historian, being unable to provide an accurate timetable of significant events which gave rise to reservations about his inability to account for this lack of recall. Nonetheless, the Tribunal noted that the appellant had been largely consistent in the claims that he made and did not discount them entirely due to such inconsistencies between written and oral claims around the timing of events. 11 The Tribunal considered in some detail the appellant's claims to be a supporter of Jamaat-e-Islami and concluded that he was a low level supporter. Country information indicated that supporters or members 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 affiliation. Rather, it was opposition leaders or members with high profiles that faced a higher risk of arrest or detention. The Tribunal noted that while the appellant should not be required to modify his political opinion or activities in order to avoid being harmed, his own evidence was that if he returned to Bangladesh he would not support any political party because he did not want any further problems. As such, the Tribunal did not accept that the appellant would have to modify his political opinions or behaviour in order to avoid harm on return to Bangladesh. The Tribunal found it significant that the appellant's father had not been harmed in his own village where his political affiliation would be widely known. 12 Critically, the Tribunal found that in view of the appellant's demonstrated ability to live and work in Dhaka (which I note is the capital of Bangladesh with a population of some 17 million) over a period of three years prior to his departure from Bangladesh in 2013, and as he had raised no other concerns about his ability to live in Dhaka, the Tribunal considered it reasonable that he would do so again upon returning to Bangladesh. Having considered the appellant's claims and his responses at the hearing, the Tribunal found that the appellant could safely relocate to Dhaka where there was no appreciable risk of the feared persecution in his local area and that it would be reasonable to expect him to do so in the circumstances. 13 Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution for reasons of his political opinion if he returned to Bangladesh now or in the reasonably foreseeable future. 14 Having concluded that the appellant did not meet the Refugees Convention criteria picked up by s 36(2)(a) of the Migration Act, the Tribunal considered the alternative complementary protection criteria in s 36(2)(aa). The Tribunal found that, for the same reasons as considered in relation to the Refugees Convention claim, it was safe and reasonable for the appellant to live in Dhaka as he had before to avoid any significant harm he may encounter in his local area from the neighbour or other members of the neighbour's family or for reasons related to his political opinion. Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh there was a real risk he would suffer significant harm for the reasons claimed or for any other reason. 15 Accordingly, on 14 March 2016 the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa.

Before the Federal Circuit Court 16 On 22 March 2016, eight days after the Tribunal's decision, the appellant filed an application for review in the Federal Circuit Court of Australia. That application was amended on 29 June 2016. The amended application contained three grounds as summarised below: (1) An assertion of jurisdictional error by the Tribunal failing to consider each integer of the appellant's claim or failing to take into account the whole of the oral and written evidence in determining whether the appellant feared persecution within the meaning of s 91R of the Migration Act. The particulars in support of that ground refer to the conduct of the Departmental interview and Tribunal hearing and there not being enough time in his interview to make statements about the incident with the neighbour, rather than identifying any aspect of his claims that was not considered. (2) The Tribunal had made a jurisdictional error when it had regard to inconsistencies in the accounts given, such as to discard oral and written submissions without providing reasons for any credibility concerns. (3) The Tribunal failed to apply the correct test in relation to the complementary protection provision in s 36(2)(aa) of the Migration Act. This ground did not identify how it was said that there had been any error in the application of that test, instead taking issue with the conclusions reached. 17 The primary judge dispensed with a show cause hearing under r 44.12 of Federal Circuit Court Rules 2001 (Cth) and instead proceeded to hear the application. 18 In dismissing the application with costs, the primary judge summarised the approach taken by the Tribunal and in particular the focus on the question of relocation to the particular area in which the appellant had lived and worked for almost three years before coming to Australia. The primary judge reproduced the three grounds of review in the amended application before his Honour. 19 In relation to the first ground, the primary judge was unable to identify any integer of the appellant's claims that the Tribunal failed to take into account. His Honour stated that on the face of the Tribunal's decision, it correctly identified the relevant law and engaged in an orthodox detailed analysis of the appellant's claims and evidence. His Honour found that the adverse findings by the Tribunal could not be said to lack an evident and intelligible justification and that the appellant was provided with a genuine hearing. On the material before his Honour, his Honour concluded that the Tribunal had complied with its statutory obligations. His Honour said there was nothing before him to establish any denial of procedural fairness by the Tribunal. The appellant had an opportunity to put on further submissions after the hearing and did not do so. 20 In relation to the second ground, the primary judge found that the assertion that the appellant's evidence was generally discarded was unfounded. Rather, the appellant's credibility was in part accepted by the Tribunal and the findings in relation to his ability to relocate were open to the Tribunal. To the extent that what was being alleged was an allegation of bias, that had not been clearly alleged or properly proven. 21 In relation to the third ground, the primary judge found that the Tribunal was entitled to take into account the findings that it had made on Refugees Convention issues in considering the issue of complementary protection. His Honour found there was no substance in the contention that the Tribunal failed to apply the correct test in relation to complementary protection. The statement of law appeared to be correct and the reasons disclosed an application of that law. 22 The primary judge therefore dismissed the amended application for review because no jurisdictional error had been established. 23 The primary judge's orders and ex tempore reasons were made and delivered respectively on 15 July 2016. The reasons were published on 26 July 2016.

Before this Court 24 On 19 August 2016, Robertson J granted leave to the appellant to file a notice of appeal consequent upon orders by consent that leave to appeal from the decision of the primary judge be granted. Accordingly, this matter proceeds by way of a substantive appeal. 25 On 30 August 2016, a notice of appeal to this Court dated 29 July 2016 was lodged and accepted for filing. That notice of appeal contains grounds of appeal to the following effect: (1) the primary judge failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to complementary protection in s 36(2)(aa) of the Migration Act, and the Tribunal failing to separate the claim to be a refugee and the fear of harm test for the provision of complementary protection; (2) the primary judge failed to hold that the Tribunal made an error of law by failing to take up and deal separately with a factual issue. This was said to be so by the Tribunal concluding that the appellant could be harmed if he returned to his local area and that State protection may not be available due to his political affiliation with the Jamaat-e-Islami party, but without having knowledge of the geographical situation made the opinion that if the appellant resided (relocated) in Dhaka there would be no safety concern and he would be immune from harm. In doing so, the Tribunal failed to understand or determine the difference between reasonable and unreasonable relocation for the purposes of complementary protection; (3) the Tribunal failed to understand that the complementary protection criteria are meant to introduce greater efficiency, transparency and accountability into Australia's arrangements for adhering to its non-refoulement obligation under the International Covenant on Civil and Political Rights, and the primary judge erred in not holding that the Tribunal overlooked the intention behind the introduction of complementary protection; and (4) the primary judge failed to hold that the Tribunal made inconsistent assertions on his credibility testimony and denied him procedural fairness, and the primary judge therefore failed to hold that the Tribunal failed to identify issues and did not explore the current situation in Bangladesh but rather made a decision based on assumptions. 26 On 2 November 2016, the appellant provided a written outline of submissions. However, those submissions did not appear to marry up with the grounds in the notice of appeal. The submissions stated that what was described as a judicial review application (rather than an appeal) relied on three grounds to the following effect: (1) the Tribunal did not follow the proper procedures to be observed in connection with the making of the decision as required by the Migration Act and the Migration Regulations 1994 (Cth); (2) the Tribunal's decision was affected by an error of law and jurisdictional error; (3) there was no evidence or other material to justify the making of the decision. 27 The first of those additional grounds referred to "Muin, Lee's case". The submissions for the Minister suggest, and I accept, that this appears to be a reference to the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. 28 It is convenient to treat the combination of the notice of appeal and written submissions as raising six grounds of appeal, merging (2) and (3) above from the appellant's written submissions given their content. Detailed written submissions for the Minister addressed each of the notice of appeal and submission grounds advanced by the appellant. 29 At the hearing of the appeal, the appellant addressed the Court as to the reasons why he came to Australia and expressed fears for his safety in returning to Bangladesh. He did not address the finding of the Tribunal as to his capacity to return or live in Dhaka. Nor did he address, other than in passing, the decision of the Tribunal. No reference was made to the decision of the primary judge. The appellant made it clear that he liked living in Australia and wanted to remain here.

Grounds 1 and 3: complementary protection test and criteria 30 Grounds 1 and 3 of the notice of appeal assert respectively a jurisdictional error in failing to apply the correct test in relation to complementary protection and a failure to understand the complementary protection criteria. It is therefore convenient to deal with those grounds together. 31 As referred to in the narrative above, the Tribunal at [76] applied the reasoning for relocation to live and work in Dhaka in relation to the Refugees Convention claim in the same manner to the complementary protection claim. Contrary to these two grounds, there is nothing to indicate that the Tribunal misunderstood the complementary protection criteria or failed to have regard to the differences between the two regimes. There was no relevant difference between relocation to avoid Refugees Convention harm or relocation to avoid harm of the kind sought to be addressed by complementary protection. It is important to note that the Tribunal was not, strictly speaking, dealing with relocation at all, but rather with the appellant resuming living in Dhaka, where it was found he had lived safely for some time after the incidents he relied upon and before coming to Australia. 32 Gilmour J observed in SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [46]-[47] that findings of fact with respect to factual claims may be germane to a tribunal's assessment of claims to fear Refugees Convention persecution as well as complementary protection. In such a case there was no need for any separate consideration of the same factual matters in relation to the latter. In that case, adverse factual findings were sufficient to dispose of the complementary protection claim made. His Honour referred to a similar conclusion reached by Siopis J in SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 at [26]. There probably is no need to resort to prior authority to establish the propositions stated by Gilmour J in SZSYI or Siopis J in SZSHF. The complementary protection regime, like the Refugees Convention claims process, calls for assessments to be made by the delegate and Tribunal members as to a range of factual matters, including risk of harm and steps that may reasonably be taken to alleviate that risk. The Tribunal in this case did nothing more than that. 33 I am unable to discern any error on the part of the Tribunal or the primary judge in relation to complementary protection issues. Accordingly, these grounds of appeal must fail.

Ground 2: error in the assessment of complementary protection and relocation 34 This ground in the notice of appeal essentially takes issue with the finding of the Tribunal at [73] of its reasons which were as follows: 73. In view of his demonstrated ability to live and work in Dhaka over a period of three years prior to his departure from Bangladesh in 2013, and as the applicant has raised no other concerns about his ability to live in Dhaka, the Tribunal considers it reasonable that he could do so again on return to Bangladesh. 35 Properly viewed, this ground of appeal is doing nothing more than taking issue with the factual findings made by the Tribunal. In my opinion, the findings made by the Tribunal were open to it and the primary judge was correct to reach the same conclusion (at [14]). This ground must therefore fail.

Ground 4: various errors in the Tribunal's reasoning 36 This ground in the notice of appeal can be considered to be making a number of discrete allegations. The first allegation is that the primary judge failed to hold that the Tribunal had made inconsistent assertions in relation to the appellant's evidence, and in particular, credibility. Even though any such errors would be unlikely to be jurisdictional in nature, I am unable to discern at even a factual level any such inconsistency. To the contrary, the Tribunal effectively gave the appellant the benefit of the doubt in relation to certain inconsistencies and largely determined his claim upon the basis of a capacity to resume living in Dhaka rather than adverse credit findings. In any event, part of this ground is nothing more than impermissible merits review. 37 The second allegation is that the appellant was denied procedural fairness. This is a bald assertion without any suggestion as to how this was said to have taken place. In common with the primary judge at [16], I cannot see anything to establish any denial of procedural fairness. This allegation has not been made out. 38 The third allegation is that the primary judge failed to hold that the Tribunal had failed to identify issues and did not explore what the current situation was in Bangladesh. No suggestion is made as to what that information might be or what difference it might make. The Tribunal referred to information dated between July 2014 and July 2015. While the Tribunal accepted that the appellant might possibly be at risk of harm, it found that this could be alleviated by him returning to live in Dhaka. No error is discernible on the approach that the Tribunal took to country information or on the question of relocation, let alone any errors arising to a level of jurisdictional error. 39 The fourth allegation is an assertion that the primary judge failed to hold that the Tribunal made its decision mainly based on assumption. While it is unclear as to what this is referring to, there is no apparent error in the approach taken by the Tribunal in the exercise of its fact-finding function, and consequently no failure on the part of the primary judge in respect of this allegation. It therefore would seem that this allegation is nothing more than impermissible merits review. 40 As none of the allegations made in support of Ground 4 appear to be of any substance, that ground of appeal must fail.

First written submission ground based on Muin 41 I accept the submission made on behalf of the Minister that the principles arising from Muin have no apparent application to the present case, a point that also seems to be conceded in the appellant's written submissions which acknowledge substantial factual differences. In Muin, the Tribunal mistakenly informed the applicant that it had read all the material relating to his application when it could not in fact have done so because not all of that information had been referred to the Tribunal by the Minister's Department. There is nothing to indicate that anything of that nature has occurred in this case. To the contrary, the appellant is not complaining about material that has not been received. Rather, he complains about material not being considered in a manner favourable to the outcome he was seeking. As such, this ground is nothing other than impermissible merits review. The complaint made based on Muin is therefore without substance. To the extent that this might be read as constituting a ground of appeal, it must fail.

Other possible grounds in the appellant's written submissions 42 A perusal of the balance of the appellant's written submissions discloses a number of disparate claims including, but also going beyond, those listed at the beginning of that document. For the following reasons, each of those complaints not only fails to point to any jurisdictional error, but appears to be also without substance at a factual or legal level. 43 There is no indication of any evidence that was before the Tribunal not being taken into account in the sense of being ignored, let alone failing to take into account anything that constituted an integer of a claim or a fact or an issue that was central or potentially determinative of the appellant's claims. There is nothing to indicate that the Tribunal overlooked any claim or failed to have regard to any material that it considered relevant. 44 To the extent that the submissions suggest the Tribunal had some obligation to investigate some unstated part of the documentary evidence provided by the appellant in support of his claims, apart from it not being clear as to what is being referred to, there is nothing to suggest that there was any particular document giving rise to the sort of obvious inquiry that a tribunal might be required to make about a critical fact, the existence of which was easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at 436 [25]-[26]. It is not apparent that there is anything constituting any failure to inquire that could possibly give rise to jurisdictional error by constructive failure to exercise jurisdiction. Nor is there anything to indicate any other failure on the part of the Tribunal to carry out its functions in a way that would constitute a jurisdictional error. 45 The appellant seems to take issue with the types of country information considered by the Tribunal. However, it is not suggested what other information should have been taken into account, whether it was provided to the Tribunal, or what difference it could possibly have made, even if that process did not involve impermissible merits review. The Tribunal considered a range of country information, but ultimately the appellant failed by reference to his own past history, and in particular the fact that he had safely lived in Dhaka for a number of years after the events complained of, before leaving for Australia. In those circumstances there appears to be no room for complaint at even a factual level, let alone a jurisdictional error in relation to the way in which the Tribunal considered and decided the appellant's review application. Correspondingly, no error on the part of the primary judge is apparent. 46 It follows that the remaining suggested errors, such as can be drawn from the appellant's written submissions, are without substance and are incapable of being elevated to the point of being any proper ground of appeal.

Conclusion 47 As no error, let alone jurisdictional error, has been established on the part of the Tribunal, and correspondingly no error on the part of the primary judge, the appeal must be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.