CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-02-21|Before: Mr J, Farrell J

The appeal is dismissed.
The appellant pay the first respondent's costs as agreed or taxed. 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 (FCCA): see CCA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1879. The FCCA Judge dismissed the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the responsible Minister not to grant the appellant (also referred to as CCA17) a Protection (subclass 866) visa (protection visa).

Summary of claims 7 The FCCA Judge summarised the appellant's claims for protection at J[25] as follows (as written): i) The applicant is a Shia Muslim and a student leader of Jatiyatabdi Chhatra Dal, a student affiliation of the Bangladesh National Party ("BNP"). ii) The applicant claimed that Shia students were killed by Sunni students. iii) The Bangladeshi government would target the applicant due to his anti-government tendencies and being a Shia Muslim. iv) In December 2009, the applicant was arrested and questioned by the police. v) In January 2010, the applicant was kidnapped and tortured by Harakat-ul-Jihad and Jamatul Mujahideen Bangladesh ("JMB"). 8 That application was refused by a delegate of the Minister on 16 August 2016. The FCCA Judge summarised the delegate's findings at J[27]. 9 On 22 August 2016, the appellant applied to the Tribunal for review of the delegate's decision. The Tribunal affirmed the delegate's decision on 24 April 2017. 10 The appellant filed an application for judicial review of the Tribunal's decision on 16 May 2017. The FCCA Judge noted that the appellant filed no materials in support of his application to the Tribunal. He attended a Tribunal hearing on 21 October 2016.

Summary of Tribunal's reasons 11 The FCCA Judge considered the Tribunal's reasons, which her Honour summarised as follows at J[33]-[41]: 33. The Tribunal explored the applicant's claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. 34. The Tribunal noted that on the information and material before it, there was nothing to suggest that JMB and Harakat-ul-Jihad had abducted Shia Muslims in an attempt to convert them to Sunni Islam. 35. To the extent that the applicant claimed that he was targeted because of his political beliefs, the Tribunal noted that JMB and Harakat-ul-Jihad were both anti-government terrorist organisations and was not satisfied that either organisation was interested in the applicant. 36. The Tribunal noted the applicant's delay in applying for protection. The Tribunal considered the applicant's arrival in Australia in April 2011, which was over a year after he claimed he was abducted, and his return to Bangladesh in 2013. The Tribunal found it difficult to accept that the applicant would have returned to Bangladesh if he had been living with the fear of being tortured, as allegedly occurred in January 2010. 37. While the Tribunal accepted that the applicant had a low level involvement with the Jatiyatabadi Chhatra Dal, the student wing of the BNP, it did not accept that: i) The applicant was beaten after he was abducted, leaving him with broken bones. The Tribunal was of the view that these were the result of a traffic accident, not being beaten by members of JMB or Harakat-ul-Jihad. ii) The JMB or Harakat-ul-Jihad threatened to kill the applicant if he did not leave Bangladesh; that they told him to leave his political party and his religion; that after he left Bangladesh they threatened to kill him if he returned to Bangladesh; and, that when he did return in 2013, they came looking for him and started threatening him again, forcing him to go into hiding. iii) The applicant was involved with the leader on the BNP, Abdul Matin Sarkar, as he was unable to name the seats in Dhaka in which he was campaigning; or that the applicant was arrested by police for his involvement with Abdul Matin Sarkar. iv) The applicant intended to become a full-time political activist in Bangladesh. v) There was a real chance that he would be persecuted for reasons of his real or imputed political opinion against the government. vi) There was a real chance the applicant would be persecuted for reason of his religion as a Shia Muslim. vii) The applicant would be kidnapped by Sunni Muslims. 38. The Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Bangladesh; that the applicant did not have a well-founded fear of persecution in Bangladesh; and, therefore, the applicant was not a person to whom Australia owed protection obligations. 39. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Bangladesh, there is a real risk that the applicant would suffer significant harm. 40. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review. 41. The Tribunal noted that there was a certificate issued pursuant to s.438 of the Act ("s.438 Certificate") over documents on the Department's file. The Tribunal considered that s.438 Certificate was invalid because it did not specify any reason why the disclosure of the documents were contrary to the public interest. The Tribunal noted that the s.438 Certificate pertained to a Compliance Client Interview and a record of a SERCO Self Harm Assessment Interview. The Tribunal found that the Compliance Client Interview was set out in the Delegate's decision to the extent that it was relevant and that the SERCO interview was not relevant.

CCA17's application to the FCCA 12 CCA17 was not legally represented before the FCCA. He attended a directions hearing at which he was provided with contact details for legal service providers and translation services, and he was given leave to file and serve an amended application giving complete particulars of each ground of review together with evidence by affidavit, any transcript of the Tribunal hearing and submissions in support of his application. He filed nothing further.

Grounds of judicial review 13 At J[46], the FCCA Judge set out the grounds of CCA17's application as follows: 1. The Administrative Appeals Tribunal's decision affected by jurisdictional error. Particulars: The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence. 2. The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant's evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth). Particulars: The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant's inability to remember or recall various issues and the dates at the time of hearing.

First ground considered 14 The FCCA Judge asked CCA17 what the claim or integer was that he asserted the Tribunal had failed to consider. CCA17 said that if he was sent home he would be persecuted or killed and that his evidence was not accepted: J[49]. The FCCA Judge asked CCA17 in what way he was denied procedural fairness. He responded that the Tribunal did not put emphasis on what he said because it did not accept what he said: J[50]. The FCCA Judge asked CCA17 what the Convention related questions were that he asserted the Tribunal should have asked. He responded that he should have been asked what would be the result if he was sent home. He said that if he was returned home there was a big chance of him being killed: J[51]-[52]. 15 At J[53], the FCCA Judge found that a fair reading of the Tribunal's reasons does not support any of the assertions in the first ground or in CCA17's oral submissions. At J[54]-[73], the FCCA Judge discussed the Tribunal's reasoning in detail as follows: 54. The Tribunal summarised the applicant's claims made in his Protection Visa application and noted that if returned to Bangladesh he would be kidnapped and murdered by Sunni Muslim students because he had been a Shia Muslim student leader. The Tribunal noted the applicant's claim that he had been arrested and harmed by Sunni Muslim fundamentalist police officers and that he also feared harm from the government in Bangladesh due to being anti-government and Shia. The applicant claimed that he had been arrested and tortured by secret police but was unable to access help from the government because of his political activities against the government. 55. The Tribunal then noted the applicant's interview with the Delegate and summarised the applicant's expansion of his claims at that interview. In particular, the Tribunal noted the applicant's claims before the Delegate that in December 2009 he had been beaten with iron rods for 30 minutes, cut with a sword, threatened with death if he did not leave the country and was told that he had to leave his religion and his political party. The applicant said he had been targeted because he was an active Shia and that the assault had resulted in 2 broken bones in each of his feet and his right shoulder had also been fractured. The applicant then said he was dropped in the forest where he was ultimately picked up and taken to [redacted] Hospital on 7 February 2010, where he remained for 2 months. The Tribunal noted that the applicant told the Delegate that he could produce medical records which said he had been injured in an accident. The Tribunal also noted that the applicant told the Delegate that his father had tried to report the incident but that police refused to take a report. 56. The Tribunal noted that the applicant told the Delegate that he had not been involved in the BNP in Australia and was no longer interested in politics. 57. The Tribunal then noted that at the hearing before it, the applicant further expanded on his claims. The Tribunal noted that he stated he had not practiced his religion in Australia because of the mental distress of being threatened in Bangladesh. The applicant then referred to the attack in January 2010 and the Tribunal put to him that he had not come to Australia until over a year after that. The applicant confirmed that he had come to Australia in April 2011. 58. The Tribunal noted the applicant's claims that he continued to receive threats after the attack in January 2010 and told the Tribunal that after he arrived in Australia, his parents told him that terrorist organisations had said that if he returned to Bangladesh he would be killed. The Tribunal noted that the applicant said that he was still getting threats from terrorist organisations through his parents. When those claims were explored, the Tribunal noted that the applicant said that he had received only 1 threat since he had been in Australia. 59. The Tribunal explored with the applicant that he returned to Bangladesh in 2013 and noted the applicant's assertion that he thought the threats of killing him upon return to Bangladesh had been false and he badly wished to see his parents. The applicant then told the Tribunal that he had found the situation even worse so had returned to Australia. The applicant said that once he returned to Australia, the threats commenced again to kill him if he returned home. The Tribunal explored these claims with the applicant in some detail and put to the applicant matters of concern it had about his evidence and noted the applicant's response. 60. In particular, the Tribunal put to the applicant that there was no country information before it to suggest that either the JMB or the Harakat-ul-Jihad abducted Shia Muslims in an attempt to convert them by force to Sunni Islam. The Tribunal also noted that it put to the applicant that if they had been interested in him because he was a member of the Shia minority, then presumably they would be interested in all members of his family. The applicant responded that only he had been abducted and tortured but he was not sure why they had done this. 61. The Tribunal also put to the applicant that there was no information before it to suggest that the JMB or the Harakat-ul-Jihad would have been interested in the fact that the applicant had belonged to the Jatiyatabadi Chhatra Dal, the student wing of the BNP in Bangladesh. The Tribunal noted the applicant's response that he used to talk against the government but again responded that he did not know why those groups had done this. 62. The Tribunal also explored with the applicant his history with his involvement with the BNP noting the applicant's evidence that he had not been involved in full time political activities and had just been a member and worked with them when they had needed him. The Tribunal explored with the applicant the fact that he did not know the names of electorates in which candidates were standing. 63. The Tribunal noted that it put to the applicant that given his description of his political involvement, the Tribunal found it difficult to believe that he would have attracted any attention of police and was having great difficulty in believing that he was telling the truth. The Tribunal also put to the applicant that it was very difficult to accept that he would have been abducted by the JMB or that Harakat-ul-Jihad. 64. The Tribunal did accept that the applicant had spent some time in hospital in Dhaka but that this had been because he had ben [sic: been] involved in a traffic accident. The Tribunal put to the applicant that his injuries, being broken bones in his feet and a fractured right shoulder were far more consistent with a traffic accident than being beaten with iron rods. 65. In relation to the applicant's claim to have been beaten and that he could produce medical records, the Tribunal noted that such records had never been produced. The Tribunal also noted that when the applicant was applying for a student visa and was examined by a doctor around 15 February 2011, the applicant told the doctor that he had been involved in a CNG accident to account for his injuries. The Delegate's decision explained that a CNG is a type of natural gas vehicle often called an auto-rickshaw or three-wheeler. The Delegate referred to country information that CNG accidents are common in Bangladesh and due to the frailty of the vehicles used injury was not uncommon. 66. The Tribunal also put to the applicant that when first detained in Australia, the applicant had not mentioned any of the problems that he now said that he had because of his religion or involvement with the Jatiyatabadi Chhatra Dal or the BNP. 67. The Tribunal also explored with the applicant why he did not apply for protection on his return to Australia in 2013. The Tribunal noted the applicant's response that he had not known about the Act or about a Protection Visa or otherwise he would have applied sooner. The applicant had said that it had not been until he had been placed in immigration detention that he came to know that he could apply for a Protection Visa. 68. Ultimately, for the concerns that it had expressed and discussed with the applicant, the Tribunal rejected comprehensively the applicant's claims of past harm in Bangladesh, including his claim to have been abducted and tortured by members of the JMB or Harakat-ul-Jihad. 69. The Tribunal did accept that the applicant had a low-level involvement with the Jatiyatabadi Chhatra Dal but was not satisfied if returned to Bangladesh that he would be involved in any opposition political activity of a sort that would attract adverse attention of the government; nor, would he be prevented from being involved in such political activity because of a fear of being persecuted for reason of his involvement. The Tribunal accepted that the applicant and his family are supporters of the BNP but did not accept that there is a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion against the government or in support of the BNP if he retuned [sic: returned] to Bangladesh now or in the reasonably foreseeable future. 70. The Tribunal rejected the applicant's claims to be at risk by reason of his religion and found that the applicant was not in fact particularly religious. The Tribunal was not satisfied that the applicant would be prevented from becoming more actively involved in practising his religion. 71. The Tribunal found that there was nothing in the independent evidence before it to suggest that Shia Muslims or Shia Muslim students or student leaders are being arrested and tortured by Sunni Muslim fundamentalist police or kidnapped and murdered by Sunni Muslim students in Bangladesh in the way claimed by the applicant. 72. Based on those findings, the Tribunal did not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there was a real reason he will suffer significant harm. 73. Accordingly, the Tribunal found that the applicant did not meet the refugee criteria in s.36(2)(a) of the Act or the complementary criterion in s.36(2)(aa) of the Act and therefore affirmed the decision under review. 16 At J[74]-[79], the FCCA Judge found as follows: 74. The Tribunal's findings were open to [it] on the evidence and material before it and for the reasons it gave including its adverse credibility findings. As is clear from the summary above, the Tribunal's findings were arrived at after a probative exploration with the applicant of his various claims during which the Tribunal put to the applicant its concerns and noted the applicant's responses. The Tribunal's findings were, in the circumstances, logical and not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). 75. A fair reading of the Tribunal's decisions record makes clear that the Tribunal considered in detail all claims made by the applicant including the applicant's claim to be persecuted or killed if he was returned to Bangladesh. 76. In relation to the applicant's assertions that the Tribunal did not accept what he said thereby denying him procedural fairness, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). 77. In relation to the applicant's complaint that the Tribunal should have asked unidentified Convention related questions, a fair reading makes clear that the Tribunal's questions were all relevant to the issue before it as to whether the applicant met the Convention criteria or the complementary criterion for a Protection Visa. 78. The fact that the applicant did not agree with the findings and conclusions of the Tribunal suggests that the applicant's complaints were more in the nature of a disagreement with the findings and conclusions of the Tribunal thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). 79. Accordingly Ground 1 is not made out.

Second ground considered 17 The FCCA Judge said that ground 2 asserted that the Tribunal made findings without evidence and disbelieved CCA17 because of his inability to remember or recall various issues and dates. The FCCA Judge asked CCA17 what he meant by the ground. He responded that he would be killed if he was sent back: J[80]-[81]. The FCCA Judge found as follows at J[82]-[86]: 82. Ground 2 does not identify any particular finding of the Tribunal which is not supported by evidence. As stated above, the Tribunal's findings, including its adverse credibility findings, were open to it on the evidence and material before it and for the reasons it gave. As stated above, they were arrived at following a detailed and probative exploration by the Tribunal of the applicant's claims. 83. The evidence which the Tribunal did accept was the independent country evidence before it which was found not to support the applicant's claims. It is well accepted that it is a matter for the Tribunal the country evidence to which it has regard and the weight it puts upon that evidence (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). The country information was current and relevant and was identified with specificity in the Tribunal's decision record, particularly, the Department of Foreign Affairs and Trade Country Information Report on Bangladesh, dated 5 July 2016. 84. To the extent that Ground 2 refers to a breach by the Tribunal of s.425 of the Act, the applicant did not particularise any such breach and none is apparent on the face of the Tribunal's decision record. The applicant was invited to attend a hearing before the Tribunal by letter dated 7 October 2016. The letter of invitation was in accordance with s.425 of the Act. The applicant in fact attended that hearing, where, as stated above, his claims were explored in great detail and matters put to him by the Tribunal in respect of matters about which it was concerned. The Tribunal's decision record makes clear that the applicant discussed his claims with the Tribunal and engaged with the Tribunal on all relevant matters. 85. There is nothing on the face of the Tribunal's decision record and nothing identified by the applicant to suggest that the hearing was a "hollow shell or an empty gesture" (see Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] per Goldberg J). 86. Accordingly, Ground 2 is not made out.

Section 438 certificate 18 Although the matter was not raised in CCA17's application to the FCCA, the FCCA Judge also considered the fact that documents had been the subject of a certificate under s 438 of the Migration Act 1958 (Cth). The Minister tendered the documents which were marked as Exhibit 2R: see J[87]. 19 In relation to this issue, the FCCA Judge found as follows at J[88]-[94]: 88. The Tribunal referred to the certificate and correctly found it to be invalid because it does not specify any reasons why the disclosure of documents would be contrary to public interest. That is insufficient in and of itself to amount to jurisdictional error (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081). 89. The Tribunal then described the folios in detail. In particular, the Tribunal noted the information contained the record of a Compliance Client Interview which it found was set out in the Delegate's decision. The other folios related to a SERCO Self-Harm Assessment Interview which the Tribunal found not to be relevant to the review. 90. True it is that the issuing of such a certificate triggers an obligation of procedural fairness on the part of the Tribunal in the terms identified by Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [3] ("SZMTA"): "3. The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome." 91. Materiality, in the case of an invalid notification, is essential to the existence of jurisdictional error. A breach is material to a decision only if compliance can realistically have resulted in a different decision (see SZMTA at [2], [45] - [49] per Bell, Gageler and Keane JJ). 92. This was not an issue raised by the applicant. 93. On the basis of the evidence before this Court contained in Exhibit 2R and in the relevant documents, filed on 14 July 2017, marked Exhibit 1R, there is nothing on the face of the material to suggest that the issuing of the s.438 Certificate, or any of the documents subject to the s.438 Certificate, gave rise to any jurisdictional error on the part of the Tribunal. 94. Accordingly, no jurisdictional error can be made out with respect to the s.438 Certificate.

Conclusion 20 The FCCA Judge found that on a fair reading of the Tribunal's decision record, the Tribunal understood the claims being made by CCA17, it explored those claims with him at the hearing and it had regard to the material provided in support. The Tribunal put to CCA17 matters which concerned it about his evidence and noted his responses. It put to CCA17 independent country information and invited his comment. It then made its findings based on the evidence and material before it. The FCCA Judge found that the Tribunal's findings of fact were open to it on the evidence and material before it for the reasons that it gave and, on a fair reading, the decision record makes clear that the Tribunal reached its conclusion based on its findings and it correctly applied the law. It therefore complied with its obligations under the statutory regime, including the conduct of the review: J[95]-[97]. The FCCA Judge found that, on that basis, the Tribunal's decision was not affected by jurisdictional error and, pursuant to s 474 of the Migration Act, the FCCA had no power to interfere. The proceedings were dismissed with costs: J[98]-[99].

Appeal 21 The sole ground of the notice of appeal filed in this Court on 8 August 2019 is that the FCCA Judge "made the jurisdictional error". The ground was not particularised. 22 The appellant was not legally represented in this appeal. The Court was assisted by an interpreter. 23 The Court explained to the appellant that the Court cannot meaningfully engage with an appeal ground that makes a general complaint of error by the FCCA, without providing particulars of the ways in which he says that the FCCA Judge erred. The appellant did not provide any further particulars. 24 The Minister filed written submissions. The Minister's representative submitted that, where (as here) the appellant had been given the opportunity to provide particulars and make oral submissions, the Minister has no case to answer. 25 In EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12], I said: While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant's ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration and Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [17], [24]-[26], [29]-[30] and [32] per Flick J. 26 Those remarks are equally applicable in this case. In this case, the appellant has not identified appellable error by the FCCA Judge nor is any apparent from the reasons that her Honour gave for dismissing the application for judicial review of the Tribunal's decision.

Conclusion 27 The appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Migration Act 1958(Cth)ss 36, 425, 438, 474

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