BMY16 v Minister for Immigration and Border Protection

Federal Court of Australia|2020-02-21|Before: O'Bryan J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from a decision of the Federal Circuit Court of Australia made on 9 May 2018, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 26 May 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act). 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 6 May 2013 as an unauthorised maritime arrival. 3 On 13 August 2013, the appellant applied for a protection visa with the assistance of a registered migration agent. That application was refused by a delegate of the Minister on 12 December 2014. 4 On 18 December 2014, the appellant applied to the Refugee Review Tribunal (as it then was) for review of the delegate's decision. The appellant attended a hearing before the Tribunal on 21 April 2016, at which he was represented by his registered migration agent. On 26 May 2016, the Tribunal affirmed the delegate's decision. 5 On 21 June 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The application stated 5 grounds of review. On 25 March 2019, the primary judge dismissed the application. 6 On 9 April 2019, the appellant file a notice of appeal in this Court. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541. The notice of appeal repeats the 5 grounds of review raised before the Federal Circuit Court. I interpret the notice to allege that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error on one or more of the grounds stated. In his written submissions filed on 19 July 2019, the appellant confined his appeal to grounds 1, 2 and 4. 7 The appellant was not legally represented at the appeal. He appeared at the hearing of the appeal and, with the assistance of an interpreter, told the Court that he was unable to say anything in addition to his written submissions. 8 As the appellant is not legally represented, I have given careful consideration to the decision of the Tribunal and the decision of the Federal Circuit Court in light of the grounds of appeal. For the reasons that follow, I cannot sustain any of the grounds of appeal and, accordingly, I will dismiss the appeal with costs.

The Tribunal's decision 9 The Tribunal summarised the appellant's claims and evidence raised in his entry interview held on 5 June 2013, his statutory declaration dated 31 July 2013, his interview with the Minister's delegate held on 3 November 2014 and in the written pre-hearing submissions made to the Tribunal as follows (at [19] to [29]): (a) The appellant claimed to fear harm in Bangladesh due to his support for and membership of the Bangladesh National Party (BNP). In particular, the appellant claimed to fear harm from supporters of the opposing political party, the Awami League (AL) and claimed that the AL had sent several threatening letters to his father in which they threatened to kill the appellant if he did not leave the country. The appellant's evidence about how many threatening letters his father received and when they were sent changed over the course of his application for a protection visa. (b) The appellant claimed that previously he had been physically assaulted by AL members and had also been threatened by BNP members due to his withdrawal from political activities. (c) The appellant claimed that his brother, who was an active member of the BNP and had worked for Haque Milon (who had been the Minister of Education when the BNP was in government), had fled to Italy because his life was threatened. The appellant claimed that his association with his brother, whom he claimed was a higher profile BNP member, meant that he was a likely target of violent extortion attempts. (d) The appellant claimed that his ex-wife's current husband is an AL official and that his ex-wife's husband would use his political affiliations to harm the appellant. The appellant claimed that his ex-wife's husband had instructed AL members to attack him in 2012. The appellant's statutory declaration recorded that this attack occurred on 12 December 2012 and was perpetrated by 6 AL members. (e) The appellant further claimed at the Tribunal hearing that persons associated with his ex-wife's husband had assaulted the appellant's father and son and had demanded money from the appellant's father. (f) The appellant claimed that both he and his father would be the target of violent extortion attempts due to the fact that the appellant's father owned a large amount of land. 10 The Tribunal accepted the following facts concerning the appellant (at [1] and [48]): that he is a citizen of Bangladesh and no other country; that he has worked in agriculture and building; he and his former wife have an 8 year old son; two of the appellant's brothers are living in his home village; one of the appellant's brothers is in Italy; the appellant's former wife has sent him divorce papers; the appellant's former wife has now remarried; the appellant's son recently broke his arm although not in the way the appellant had claimed. 11 The Tribunal summarised its findings in relation to the credibility of the appellant's claims as follows (at [49]): Having carefully considered the applicant's evidence, I have formed the view that he has not told the truth about why he left Bangladesh and why he does not want to return there now. In summary, a central element of the applicant's claim, that he was actively involved in the BNP, was not credible. The applicant's evidence about his involvement in the BNP was vague and lacked detail: he was unable to correctly identify what the BNP flag looked like and when asked what the symbol of the BNP was could not do so. He could not remember when the last elections were held in Bangladesh or when the BNP was last in power and while he said the Awami League had been in power for many years he could not remember when they came to power. Overall, I found the oral evidence to the Tribunal lacked the same detail as his written claims and his evidence about core elements of his claims, such as the threatening letters he claims were sent to his father, has changed significantly over time. In the interview with the delegate and at the hearing the applicant introduced a new claim, that was not mentioned in his statutory declaration, which was that he was at risk of harm from the BNP. For the reasons that are discussed below, I did not find the applicant's claims to fear harm from ex-wife's new husband to credible (sic) and nor, on the evidence before me, do I accept that there is a real chance he will be subject to extortion upon his return to Bangladesh. 12 The Tribunal explained why its concerns about the credibility of the appellant's claims were not overcome by the documents submitted to the Tribunal (and previously to the Department) (at [50]): …As I discussed with the applicant little weight can be placed on undated handwritten documents which could have been authored by anyone. Furthermore, as I discussed with the applicant, the country information which is available to the Tribunal indicates that fraudulent documentation is easy to obtain in Bangladesh. In these circumstances, I consider the documents he has submitted to the Tribunal can be given little weight. The applicant maintained the documents were genuine. However, having regard to the available country information, I consider they can be given little weight and they do not overcome my concerns about the credibility of his claims, which are set out in detail below. 13 The Tribunal made the following findings in relation to the appellant's claims (set out above): (a) In relation to the appellant's claims of being involved in the BNP and targeted by AL supporters, the Tribunal was not satisfied that the appellant ever had any involvement in the BNP, and did not accept that the appellant was ever assaulted or threatened by AL supporters. The Tribunal did not accept that the appellant is disinterested in politics by reason that he was threatened or harmed due to his political activities in the past (at [66]). (b) In relation to the appellant's claims that his brother was involved in the BNP, the Tribunal did not accept that the appellant's brother worked for Haque Milon and found that, even if it were accepted that the appellant's brother had some prior involvement with the BNP, he was now in Italy and the appellant had not previously experienced any problems because of his brother's involvement in politics. The Tribunal did not accept that the appellant would be harmed because of his brother's involvement with the BNP (at [69] and [70]). (c) In relation to the appellant's claims that he had been threatened by BNP supporters, the Tribunal did not accept that the appellant had been threatened by BNP supporters because of his withdrawal from political activity and did not accept that he would be threatened or harmed by BNP supporters if he returned to Bangladesh. The Tribunal also noted that it was not aware of any country information that indicated that the BNP forcibly recruited its members (at [71] and [72]). (d) In relation to the appellant's claims that he is at risk from his ex-wife's new husband, the Tribunal found the claims to be vague and unconvincing. The Tribunal had regard to photographs provided by the appellant and accepted that they depicted the appellant's son with his arm in a sling and that his son may have broken his arm. However, the Tribunal did not accept that this injury resulted from the appellant's ex-wife's new husband having arranged to have his wife's son assaulted and threatened (at [75]). While the Tribunal accepted that the appellant's wife may have sought a divorce and may now be remarried, it did not accept that his ex-wife's new husband was a powerful man involved in the AL or that he had ever instructed others to assault or harm the appellant or the appellant's family members. The Tribunal was not satisfied that there was a real chance that the appellant's ex-wife's new husband would seek to harm the appellant if he returned to Bangladesh (at [76]). (e) In relation to the appellant's claims that he would be at risk of extortion upon return to Bangladesh, the Tribunal did not accept that the appellant's father had been subjected to extortion attempts or threats made by the AL since the appellant had left Bangladesh and found that, if the appellant's father had in fact paid money to the AL in 2010, this was an isolated incident and was not related to the appellant's asserted political profile. The Tribunal did not accept that the AL sent threatening letters to the appellant's father in 2012 demanding money and that his son leave the country, nor did it accept that the appellant would be the victim of extortion for any of the reasons claimed (at [80] and [81]). 14 Based on its findings in relation to the appellant's claims, the Tribunal concluded that the appellant had not satisfied the criteria in ss 36(2)(a) or (2)(aa) of the Act. On that basis, the Tribunal affirmed the delegate's decision refusing to grant the appellant a protection visa.

Decision of the Federal Circuit Court 15 Before the Federal Circuit Court, the appellant relied on the following five grounds of review (errors in original): 1. The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party prior to my departure from Bangladesh. 2. The Honourable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application. 3. The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions I experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing. 4. The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa. 5. The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated. 16 The primary judge observed (at [21] and [22]) that, in so far as grounds 1, 2, 3 and 5 above contend that the Tribunal erred by failing to correct errors in the findings made by the Minister's delegate, those grounds proceeded upon a misconception of the role of the Tribunal in conducting its review under s 414 of the Act and the jurisdiction of the Federal Circuit Court under s 476 of the Act, which (as noted above) is confined to review of the Tribunal's decision on the basis of jurisdictional error. Nevertheless, his Honour considered the above grounds of review on the basis that they alleged error on the part of the Tribunal rather than the Minister's delegate (at [22]). 17 Relevantly for this appeal, the primary judge concluded that each of grounds 1, 2 and 4 sought merits review of the Tribunal's decision and did not identify any jurisdictional error (at [23], [25], [26], [29] and [31]). In so far as ground 2 alleged a denial of procedural fairness, the primary judge noted that the appellant had been invited to attend a hearing and had attended together with his solicitor and migration agent and there was no evidence of any complaint to the Tribunal about not being afforded procedural fairness (at [26]).

Ground 1 18 By the first ground of appeal, the appellant contends that the Tribunal failed to take into consideration his claim that he was a victim of persecution by reason of his affiliation with the BNP. The appellant's written submission provided the following particulars of this ground of appeal, which focus on paragraph 82 of the Tribunal's reasons (errors in original): […] the trial court below have failed to accept that the tribunal have erred in finding my association with BNP as in paragraph 82 of the decision gave a brief reasoning of the members understanding but failed to spell out the reasoning why the tribunal does not accept that I am a supporter of BNP or even voted BNP. The tribunal's reasoning in paragraph 82 is irrelevant, irrational and a clear jurisdictional error. 19 Paragraph 82 of the Tribunal's reasons appears under the heading "Conclusions on the credibility of the applicant's claims". It is a summary paragraph, not a full statement of the Tribunal's reasons. It states: For all the reasons that are set out above, I have reached the conclusion that the applicant's claims are not credible. I am not satisfied that he was ever actively involved in the BNP as claimed and, because I do not accept that he is now, or was ever a BNP supporter of any type, I do not accept that he was ever threatened and assaulted by supporters of the AL as claimed. I do not accept that the applicant ever participated in meetings of the BNP, rallies, protests, election campaigns, putting up BNP posters, taking down AL posters or any other public political activity. I do not accept that the applicant ever voted for or supported BNP candidates in elections in Bangladesh or encouraged others to do so. I do not accept that he was assaulted by AL supporters in 2011 or in 2012 or at any other time. 20 The Tribunal's detailed reasoning in respect of those conclusions is set out in paragraphs 51 to 66 of its reasons. In my view, those paragraphs appropriately set out the Tribunal's reasoning for its conclusions, and the reasoning is not irrelevant or irrational as alleged. I reject the contention that this aspect of the Tribunal's reasoning is affected by jurisdictional error.

Ground 2 21 The appellant's written submissions provided the following particulars of ground 2 (errors in original): The second respondent have alleged that I am not a 'credible witness' but never puts that to me that what is my response is not acceptable as a credible witness. The presumption is there that I am giving the truthful account of my past within my best ability with an aim to place my claims as much as I can. However, the tribunal have diminished my claims by raising the credibility finding. I therefore, submit that the honourable court below have erred by agreeing to the same reasoning of the second respondent. 22 In so far as the first sentence of the particulars may be understood as a submission that the appellant's credibility was not put to him as an issue when he came before the Tribunal, the Minister made two submissions in response: first, that the Tribunal was not required as a matter of course to put an applicant's credibility to them for comment; and second, that in this case, the appellant was on notice that his credibility was an issue because that issue was central to the reasoning and decision of the Minister's delegate. 23 I accept the Minister's submissions. In a review under Part 7 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. The rules of procedural fairness require the Tribunal to inform the applicant of any issue critical to the decision which is not apparent on the known material, but the Tribunal is not required to expose its provisional views for comment, including a view that the applicant may not be accepted as a witness of truth: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29], [35]-[36] and [47]-[48]. Nor do ss 424AA(1) or 424A(1) require the Tribunal to put to the applicant the Tribunal's doubts about, or disbelief, of the applicant's evidence: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [17]-[18]. 24 Further, and in any event, the delegate had previously concluded that a number of the appellant's claims were not credible. While the delegate accepted that the appellant was a low-level BNP supporter who feared harm from members of opposing political parties as a result of generalised political violence in Bangladesh, the delegate did not accept the appellant's claims that he was assaulted in 2011 and in 2012, that his father received threatening letters stating the appellant would be killed if he did not leave Bangladesh and that the appellant was threatened by BNP members after he withdrew from political activities (delegate's decision record at p 10). On the basis of the above findings as to the credibility of the appellant's claims, the delegate found that the appellant did not satisfy the criteria in ss 36(2)(a) or (2)(aa) of the Act. By reason of the delegate's decision, the appellant should have been on notice, upon appearing before the Tribunal, that his credibility had been raised as an issue in the decision the subject of the Tribunal's review.

Ground 4 25 As noted above, ground 4 of the appeal was as follows: The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa. 26 It is tolerably clear that the ground is directed to the refugee criteria in s 36(2)(a) of the Act (as the ground refers to "persecution for a convention reason"). However, the appellant's written submissions provided the following particulars of ground 4 (errors in original): The second respondent has failed to separate the claim to be refugee and the fear of harm test for the provision of complimentary protection. The second respondent's decision has jurisdiction error in relation to complimentary protection provision. The correct test is stipulated in Section 36(2)(aa) in the Migration Act and the second respondent has failed to apply the test. 27 The Minister correctly submitted that the submissions essentially raise a new ground of appeal directed to the Tribunal's findings with respect to the complementary protection criteria in s 36(2)(aa). Be that as it may, in my view neither the ground in its original form nor in its revised form can succeed. In so far as the original ground was directed to the refugee criteria under s 36(2)(a), it was a bare assertion of error without particulars and the primary judge was correct to find that jurisdictional error on the part of the Tribunal had not been shown. In so far as the particulars are concerned, the Tribunal did not fail to separate the refugee claim and the complementary protection claim. As the Minister submitted, the Tribunal was entitled to rely on the same factual findings for both claims in circumstances where the tests of real risk and real chance involve the same threshold: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246] per Lander and Gordon JJ (with whom Besanko and Jagot JJ agreed at [297] and Flick J agreed at [342]). That is what the Tribunal did, commencing at paragraph 44 of its reasons. After setting out the appellant's claims, the Tribunal made factual findings on those claims. The Tribunal then reached conclusions on the refugee criteria and the complementary protection criteria (at [88] - [94]). There was no error in doing so.

Conclusion 28 The appellant has failed to identify any appellable error on the part of the Court below or any jurisdictional error on the part of the Tribunal. Accordingly, the appeal should be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.

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