BYO16 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2022-11-08|Before: Halley J

The notice of appeal is dismissed.
The appellant is to pay the costs of the first respondent, as taxed or agreed. 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 judgment of the Federal Circuit Court of Australia (as it then was) (FCCA): see BYO16 v Minister for Immigration & Anor [2020] FCCA 396. 2 The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 June 2016 affirming an earlier decision of a delegate (Delegate) of the first respondent (Minister) made on 1 December 2014 refusing to grant the appellant a Protection (Subclass 866) visa. 3 For the reasons outlined below, the appeal must be dismissed.

Decision of the Tribunal 13 On 9 December 2014, the appellant applied to the Tribunal to review the Delegate's decision. 14 On 4 April 2016, the appellant's legal representative lodged a written submission with the Tribunal challenging the Delegate's decision and restating the appellant's claims for protection. The appellant's claims under the Refugees Convention criterion and the complementary protection criterion were summarised in the following terms in the submission: Refugees Convention [The Applicant] fears serious harm from members and supporters from the Awami League based on the following Refugees Convention grounds: 1. His imputed political opinion - as opposed to the Awami League. 2. His membership of the particular social group of families that have land illegally occupied by Awami league supporters. [Complementary] Protection If the Member is not inclined to find a Refugees Convention nexus between the harm feared by [the Applicant] and one of the Convention grounds listed above, we submit that [the Applicant] faces a real risk of significant harm in the form of either an extrajudicial killing; or torture and cruel and inhumane treatment from Awami League members who have targeted him and his family in the past and who currently occupy land that rightly belongs to him and his family members. 15 On 5 April 2016, the appellant appeared in person before the Tribunal. 16 On 30 June 2016, the Tribunal affirmed the Delegate's decision and issued reasons for that decision (decision record or DR). 17 The Tribunal found that the appellant was not a credible witness and that the central elements of his claims could not be accepted as credible (DR[62]). The Tribunal reached that conclusion for the following reasons. 18 First, the Tribunal found that the reasons advanced by the appellant as to why his family was targeted, namely on the basis that "they were relatively wealthy, business rivals were jealous of his father, and that they were considered to be 'apolitical'" were not persuasive. The Tribunal found that the appellant gave inconsistent evidence about his family's wealth and this discrepancy cast doubt on the credibility of his claim that his family were targeted because they were wealthy (DR[63]). The Tribunal found no support in the country information to indicate that the Awami League targeted people because they were apolitical. It also found the appellant's evidence that his family were targeted because of their imputed political opinion was "vague and lacking in persuasive detail" (DR[64]). 19 Second, the Tribunal found the appellant's evidence about his wife's purported abduction and disappearance was "highly improbable and unpersuasive". The Tribunal also found the appellant's evidence about when he discovered his wife was missing shifted over time. In his visa application, he said he found out about his wife's abduction in May 2013, but he referred to her abduction in his entry interview in April 2013. Whilst this inconsistency was "relatively minor", the Tribunal did not accept his evidence about his wife's abduction and disappearance to be otherwise persuasive (DR[65]). 20 Third, the Tribunal found the appellant's evidence about his attempts to find his family members was "contrived, improbable and unconvincing", specifically that his only effort to find his family and wife was to phone one friend in Bangladesh (DR[66]). The Tribunal considered that it strained credibility to believe that "an enterprising young man such as the [appellant] did not have a mobile phone while he was living in Bangladesh" which was a country of 155 million people with around 130 million mobile phone subscribers. The Tribunal was concerned that the appellant had denied having a mobile phone in Bangladesh to avoid questions about why he and his family members could not contact each other (DR[67]-[68]). 21 Fourth, the Tribunal found aspects of the appellant's evidence lacked consistency over time. It found his evidence at the hearing about whether he approached the police was "internally inconsistent" and difficult to reconcile with his second statutory declaration (DR[69]). 22 Fifth, the Tribunal found aspects of the appellant's evidence unpersuasive. It noted that there were inconsistencies in his recount of being attacked in his First Statutory Declaration and at the Tribunal hearing. Whilst the discrepancies were "relatively minor", the Tribunal found his evidence was otherwise unpersuasive (DR[70]). 23 The Tribunal found that both the appellant's description of the treatment he received in hospital after the attack incident and his statement that although he was beaten with sticks, there were no marks on his body, were "unconvincing". The Tribunal observed that when asked if he required treatment for any injuries, the appellant said "he required stitches for the scar on his hand - he could not remember". The Tribunal had regard to the appellant's hospital documents but gave them little weight considering country information about the prevalence of fraudulent documentation in Bangladesh (DR[70]-[71]). 24 Sixth, the Tribunal found the appellant's evidence that his family was threatened that if they remained in his village they would be falsely accused of murder was vague and lacked consistency. The Tribunal also found his evidence about when the alleged murder occurred shifted over time (DR[72]). 25 The Tribunal also found the appellant's claim that his land was forcibly taken was not persuasive. It noted the claim was not raised in his First Statutory Declaration and his evidence at the hearing about the land, its location and what crops were grown on it were not persuasive. The Tribunal noted the appellant's supporting documents in respect of the land but gave them limited weight because they did not establish that this land was forcibly taken (DR[73]). 26 Finally, the Tribunal had concerns about aspects of the appellant's evidence which caused it to question whether he was telling the truth. For example, even though he said he had never travelled outside of Bangladesh before coming to Australia, the Tribunal found the fact that the appellant could speak Hindi, Arabic and Malay "might suggest" he had previously travelled outside Bangladesh and did not find persuasive the appellant's claim that he had learnt those languages because he thought it would be a "useful hobby". Nor did the fact that his birth certificate indicated his birth was registered in 2014, after he had left Bangladesh, alleviate its doubts about the appellant's claims that he had never had a passport and had never travelled outside Bangladesh before he commenced his journey to Australia (DR[74]). 27 Whilst accepting the appellant left Bangladesh illegally and sought asylum abroad, the Tribunal relied on country information about returnees to Bangladesh and was not satisfied that he faced a real chance of serious harm or significant harm (DR[80]-[82]). 28 The Tribunal concluded that, after considering the appellant's claims singularly and cumulatively and having regard to its findings of fact and the available country information, it did not accept that there was a real chance that the appellant would suffer serious harm if returned to Bangladesh, now or in the future. Further, the Tribunal did not accept that the appellant had a well-founded fear of being persecuted for his political opinion or any other Convention reason and therefore the appellant was not a refugee and did not meet the requirements of s 36(2)(a) nor s 36(2)(aa) of the Migration Act 1956 (Cth) (Act) (DR[85]-[86]). 29 Having found that the appellant was not a refugee, the Tribunal also concluded that, after having regard to the appellant's claims singularly and cumulatively and its findings of fact and the available country information, it did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant's removal to Bangladesh, there was a real risk that he would suffer significant harm for any of the reasons claimed by the appellant and therefore the appellant did not meet the requirements of s 36(2)(aa) of the Act (DR[86]).

Decision of the FCCA 30 On 25 July 2016, the appellant filed an application in the FCCA seeking judicial review of the Tribunal's decision. 31 On 12 March 2019, the appellant's application was heard by the primary judge and the primary judge delivered his reasons for judgment on 27 February 2020. 32 The appellant relied on the following grounds before the primary judge: 1. The Tribunal made an error of law, in reaching a decision which failed to understand the law relevant to appellant's claims, namely ss.36(2)(a), 36(2)(aa) of the Migration Act (Cth). 2. The Tribunal did not take into account material evidence important to the applicant's case. The applicant is of the view that the Honourable Member formed a bias opinion about his credibility so as not to give weight to the information and evidence he provided. 3. The Tribunal had a duty to act fairly, in the exercise of its administrative powers which affected the rights, interests and legitimate expectations of the applicant. It failed in this obligation towards the applicant and he feels unheard of in relation to his protection claims. 4. The applicant claims that rules of natural justice were not afforded to him by the Tribunal, where he was not given a proper hearing and that there was bias towards him. 33 At [17]-[33] of his reasons, the primary judge summarised the Tribunal's decision and in referring to the Tribunal's adverse credibility findings, noted at [26] "the well-known admonition of Judges in both the Federal Court of Australia and this Court against excessive use of Entry Interviews in assessing credibility". The primary judge considered that the Tribunal's assessment of the appellant's credibility was not inconsistent with the principles stated by the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436, 450 (MZZJO) (which had been cited by the Tribunal). Nor did the primary judge consider that the Tribunal's approach was inconsistent with the decision of Wheelahan J in ANQ16 v Minister for Immigration [2019] FCA 693. His Honour, was satisfied that the Tribunal did not make adverse credibility findings due to an omission by the appellant in the Entry Interview, but rather made them based on a positive assertion by the appellant that his family was poor which was contradictory to his later claims. 34 The primary judge found that ground 1 was generalised and unparticularised and it did not identify any error of law and nor was any error of law identified at the hearing in which the appellant only made submissions invoking merits review. The primary judge found that the Tribunal had extensively set out the relevant legal issues and statutory provisions and there was nothing in the decision record of the Tribunal from which it could be suggested that the Tribunal had failed to understand the law relevant to the appellant's claims comprised in ss 36(2)(a) and 36(2)(aa) of the Act. 35 The primary judge found that ground 2 was also generalised and did not identify the "material evidence" which the Tribunal was alleged not to have taken into account. Further, the primary judge found that there was not "a skerrick" of any evidence of bias, whether actual or ostensible. The primary judge found that the Tribunal had expressly considered both the First Statutory Declaration and the Second Statutory Declaration and accurately set out their contents in its decision record, it had confirmed that it had listened to the appellant's interview with the Delegate and specifically noted the various submissions made by the appellant to the Department in September 2014, the submissions of the appellant's solicitor of 4 April 2016 and summarised the solicitor's oral submissions made to the Tribunal on 4 April 2016. 36 With respect to ground 3, the primary judge found that there was no evidence to suggest that the Tribunal did not act fairly towards the appellant. The primary judge concluded that the decision record from [35] to [56] evidenced: a full and meaningful discussion of the [appellant's] claims at the Tribunal hearing, which extended over a period of three hours and fifty minutes with one intermission, and it is clear beyond argument that however subjectively the [appellant] may feel that his claim was "unheard", objectively that is not the case. 37 Finally, the primary judge found that ground 4 was also generalised and unparticularised and there was no evidence that the Tribunal had failed to afford the appellant natural justice or that it was affected by any form of bias. 38 The primary judge therefore concluded that the appellant had failed to establish that the decision of the Tribunal was affected by jurisdictional error and on that basis dismissed the appellant's application.

Consideration 39 The appellant seeks to advance six grounds in his notice of appeal filed on 5 March 2020. The notice of appeal comprises seven numbered paragraphs but there is no text next to the fourth numbered paragraph. Grounds 4 to 6 are therefore found in the paragraphs numbered 5 to 7 in the notice of appeal. 40 The Minister was represented by Mr Taylor of counsel at the hearing of the appeal. The Minister advanced both written and oral submissions. 41 The appellant was self-represented at the hearing. He advanced oral submissions through an interpreter at the hearing but did not advance any written submissions.

Ground 1 42 The appellant contends in this ground that: 1. Hon. Judge Dowdy of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to take relevant considerations because it ignored its statutory duty to review the delegate's decision and made decision on irrelevant facts and findings. 43 The Minister submits that the complaint made in this ground is meaningless given the absence of any identification of the alleged relevant considerations that were not taken into account and the alleged irrelevant facts and findings on which it relied to make its decision. The Minister submits that ground 1 should be dismissed for want of particulars. 44 In the course of his oral submissions, the appellant stated that his essential complaint that he sought to advance in this ground was that if the Tribunal had not believed the content of the documents that he had provided to it then it should have undertaken its own investigation in Bangladesh of his claims for protection. The appellant did not otherwise identify any alleged relevant considerations that were not taken into account and the alleged irrelevant facts and findings on which it relied to make its decision. 45 The Tribunal was not under any general freestanding obligation to make its own enquiries in order to determine the position in Bangladesh if it was not satisfied with the evidence provided by the appellant: Pennie v Minister for Home Affairs [2019] FCAFC 129 at 14 (Davies, Derrington and Colvin JJ); Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; [2014] FCAFC 28 at [119] (Perry J). Nor could the enquiries that the appellant contends that the Tribunal should have undertaken as to the alleged facts in Bangladesh on which he relied for his protection claims be characterised as "an obvious enquiry about a critical fact, the evidence of which is easily ascertained" as found in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 46 Moreover, I am satisfied from my review of the decision record of the Tribunal that it provided detailed reasons for its findings, it correctly identified the relevant legal principles, gave meaningful consideration to the Delegate's decision, made findings of fact in relation to the appellant's claims and assessed those findings against the refugee and complementary protection criteria. I therefore find that the Tribunal has not "ignored its statutory duty". 47 Critical to the Tribunal's reasoning was its adverse finding as to the credibility of the appellant and the rejection of his evidence. The Tribunal explained the approach that it had taken to its assessment of the credibility of the appellant at [62] of its decision record: For all the reasons that follow, I have found the applicant is not a credible witness. I have reflected upon his representative's submissions and I acknowledge that caution and care needs to be exercised in reaching adverse credibility findings and that it is important to view inconsistencies with an eye that is sympathetic to the stress and difficulties that asylum seekers face recounting traumatic events on multiple occasions. I have sought to adopt a liberal attitude in assessing the applicant's evidence. I am prepared to accept that the applicant is from a small village in Chandpur district where the majority of the inhabitants are of Hindu ethnicity. I also acknowledge that he has always said that his family was subject to demands for money and that he was beaten. However, ultimately, for the reasons that follow, I have reached the conclusion that the central elements of his claims cannot be accepted as credible. 48 As the primary judge observed, the approach by the Tribunal was consistent with the statements of principle by the Full Court in MZZJO, particularly at [55]: We agree with the Federal Circuit Court that the Tribunal's conclusions were "well open to it" in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal's questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant's various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview. 49 This ground does not identify any appellable error.

Ground 2 50 The appellant contends in this ground that: 2. The appellant claims that he was denied procedure fairness when he was not given a chance to read and take legal advice from a Barrister/Solicitor. Whenever he wanted legal advice from a Barrister / Solicitor, all they ask for Green Court Book a bundle of Documents related with appellant's claim. The Respondent never forwarded either by post or email. The Rspondent [sic] has accepted his fault not to post or forward Green Book to the Appellant. At the time of hearing he was given only 20 minutes to read 100 pages green book. The Applicant claims that Honourable Judge did not give importance of this issue and dismissed the case without giving a reasonable reasons for not fulfilling the requirement to give Greenback [sic] to the Appellant. 51 The Minister submitted that the appellant has not provided any evidence to establish that he was not served with the court book in the proceedings below, the Minister admitted any failure to serve the court book on the appellant or that the appellant made any efforts to obtain legal representation that were frustrated by the appellant not having a copy of the court book. 52 In any event, the Minister submitted that the appellant has not explained how the absence of the court book could have led to any denial of procedural fairness in circumstances in which there was nothing in the court book of which the appellant was not aware. 53 Moreover, the Minister submitted that there was nothing before the Court to indicate that the appellant raised any concern with the primary judge about any delay in receiving the court book. 54 The following exchanges with the appellant in the course of his oral submissions are instructive: HIS HONOUR: Why do you say, Mr Appellant, that the Minister has admitted that she did not serve the court book on you? THE INTERPRETER: No, I just wanted to say I didn't receive in 2016. HIS HONOUR: So you don't say to me today that the Minister has ever admitted to you that she did not serve the court book on you? THE INTERPRETER: No, that's not - maybe that's a mistake because I said maybe they sent it but I never received it. and, HIS HONOUR: Yes. What I'm asking you is why did any delay in you receiving that court book stop you from obtaining legal assistance? THE INTERPRETER: Did I say that? Where? Where did I say that? HIS HONOUR: In ground 2. In the first sentence. THE INTERPRETER: I think it's ..... two ground. Yes. I was saying that that time, they ask me - the honourable judge asked me if I had the book or not. When I informed I did not have, his Honour gave me 15 to 20 minutes time. With the help of the interpreter, it was explained - went through the book, but I said I didn't have the book, but I don't remember saying that if I had the book, I would have gone to a lawyer … yes. 55 The above exchanges reveal that the appellant does not maintain that any delay in receiving the court book precluded him from obtaining the assistance of any lawyer and the appellant is not contending that the Minister had made any admission that the court book had not been served on the appellant. There may have been a delay in the appellant receiving the court book but the appellant does not seek to attribute that delay to the Minister and in any event, as the Minister submits, it is not apparent how any delay in the receipt of the court book could have led to any denial of procedural fairness in circumstances in which there was nothing in the court book of which the appellant was not aware. 56 This ground does not identify any appellable error.

Ground 3 57 The appellant contends in this ground that: The Appellant claims that the AAT was confused over questions of facts of which the Appellant was not aware at all. Not doing a qualilative [sic] assessment of the conduct of the Tribunal may be treated as a jurisdictional error. 58 The appellant clarified in the course of his oral submissions that what he meant to convey by this ground was that he was confused as to why the Tribunal did not believe the information in the documents that he provided to them. 59 In any event, for the reasons advanced above in relation to ground 1, I am satisfied that the Tribunal did perform a "qualitative assessment" of the appellant's claims for protection. 60 This ground does not identify any appellable error.

Ground 4 61 The appellant contends in this ground that: 5. Hon Judge failed to hold that the AAT failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act The AAT did not follow Rules of Real Risk Test of Persecution and harm. 62 The appellant explained in his oral submissions that what he meant to convey by contending that the Tribunal had failed to apply the correct test was that the Tribunal should have made its own enquiries to determine what the position in Bangladesh was if it did not accept the evidence of the appellant. 63 As explained above, the Tribunal was not under any general freestanding obligation to make its own enquiries in order to determine the position in Bangladesh if it was not satisfied with the evidence provided by the appellant. 64 The Tribunal was entitled to rely on the country information that was available to it concerning the current position in Bangladesh. 65 I am otherwise satisfied that the Tribunal applied the correct test contained in s 36(2)(aa) of the Act, namely were there substantial grounds for believing that as a necessary and foreseeable consequence of the appellant's removal from Australia to Bangladesh there was a real risk that the appellant would suffer significant harm (DR[78]-[79]). 66 This ground does not identify any appellable error.

Ground 5 67 The appellant contends in this ground that: 6. The appellant claims that the Department ignored the Current political situations Bangladesh. The Present government Of Bangladesh is killing and torturing opposition party workers by adopting the cruel method of Extra Judicial Killings, enforced Involuntary disappearances arbitrary Arrest and Detention. MT totally ingnored [sic] these elements of Complementary protection. The Appelant [sic] claims that the the [sic] department failed to apply correst [sic] test the claims advanced by the appellant and his legal adviser. Hon Judge failed to hold that the AAT failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act The AAT did not follow Rules of Real Risk Test of Persecution and harm. 68 The appellant submitted that he had provided the Tribunal with newspaper articles and documents that established these matters and that if they were not believed then the Tribunal could have checked these matters on line and found the truth. 69 The Minister submitted that, to the extent the ground is directed at the Delegate's decision, the FCCA has no jurisdiction as it was a primary decision for the purposes of s 476(2)(a) of the Act, citing SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 at [23]. 70 The Minister otherwise submitted that the Tribunal did undertake an assessment of whether there was a real risk or real chance of serious or significant harm by reference to relevant independent country information and that in doing so it was entitled to accept or reject or give such weight to the evidence relied upon by the appellant as it thought appropriate in all the circumstances. 71 I am satisfied that the Tribunal did engage in an active intellectual process in engaging in its assessment of whether there was a real risk of serious or significant harm by reference to relevant independent country information, in particular, that citizens who depart Bangladesh illegally are in practice not subject to penalties, either by fines or imprisonment on their return and that, other than the claims of the appellant that it did not accept, it had no information that indicated that any persons were targeted by members of the Awami League party because they were apolitical. 72 Further, as stated above, the Tribunal was not under any general freestanding obligation to make its own enquiries in order to determine the position in Bangladesh if it was not satisfied with the evidence provided by the appellant. 73 This ground does not identify any appellable error.

Ground 6 74 The appellant contends in this ground that: 7. The AAT decision is unreasonable with regards to Complementary Protection Provision. It failed to give real reasons when considering the complementary protection. The Tribunal ignored the principles of assessing the risk of persecution related with the provision of Complementary protection criterion. Hon. Judge failed to hold that the MT took an "unduly harsh approach" in assessing a assessing the appellant's claims. 75 The appellant submitted that he did not remember advancing any ground to the effect that the Tribunal had taken a harsh approach in assessing his claims for protection and he had always respected the Tribunal's decision. 76 The respondent submitted that the Tribunal considered the risk of serious harm to the appellant in detailed reasons and concluded that there was not a real risk or real chance that the appellant would suffer serious or significant harm. 77 As explained above, I am satisfied that the Tribunal did engage in a meaningful assessment of the risks of the appellant if he were to return to Bangladesh and ultimately preferred the country information prepared by the Department of Foreign Affairs and Trade to the evidence of the appellant. 78 This ground does not identify any appellable error.

Disposition 79 The notice of appeal is to be dismissed with costs. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Migration Act 1956(Cth)ss 36, 476

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