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[2016] FCA 1394
Federal Court of Australia
2016-11-23
White J
Original judgment source is linked above.
WHITE J: 1 On 2 November 2016, I dismissed the appellants' appeal against a decision of the Federal Circuit Court (the FCC). I said that I would publish reasons later. The following are my reasons. 2 The first appellant (to whom I will refer to as "the appellant") is a national of Bangladesh who arrived in Australia on 13 June 2007 on a Student visa. Thereafter, he was granted a succession of further Student visas, the last of which expired on 11 November 2011. 3 One year later, on 9 November 2012, the appellant and his wife applied for protection visas. It is evident that the wife's claim was secondary to that of the appellant. 4 A delegate of the Minster refused the applications for the protection visas. Both the appellant and his wife then sought review by the Refugee Review Tribunal (the RRT). Their first child, who was born in late 2012, was not one of the applicants for review. 5 On 24 February 2014, the RRT affirmed the delegate's decision. Both the appellant and his wife then sought judicial review by the FCC, pursuant to s 476 of the Migration Act 1958 (Cth). That application failed: SZUDB v Minister for Immigration [2016] FCCA 1152. 6 The appeal to this Court was commenced by the appellant only. On the hearing of the appeal, I granted the appellant leave to join his wife as a co-appellant. 7 The appellant and his wife had the assistance of a migration agent in relation to their application for a protection visa but have been unrepresented thereafter. The grounds of the application for review in the FCC and of the appeal to this Court reflect that circumstance. 8 The Administrative Appeals Tribunal (the AAT) which has replaced the RRT filed a submitting notice. 9 In order to provide the context for the appellants' appeal, it is appropriate to outline the basis for their underlying claim for the protection visas. 10 The appellant was born in Pabna in Bangladesh in 1984. Between 1989 and 2005, he was a student in Bangladesh. The appellant left Bangladesh in 2007 and, as already indicated, came to Australia on a Student visa. 11 The appellant claimed to fear persecution on two of the Refugee Convention grounds: by reason of his political opinions and by reason of his religious faith. 12 As to the first, the appellant said that he had been active in student politics in Bangladesh including being the organising secretary of the student wing of the Bangladesh National Party (the BNP) in 2000, vice-president of a university college wing of the BNP in 2003, as well as engaging in other activities in support of the BNP. As organising secretary of the Jatiyatabadi Chatradal (the student wing of the BNP), he had been actively engaged in the 2001 election in Bangladesh in which the BNP was successful. As to the second, the appellant said that he feared religious persecution on the basis of his adherence to the Ahmadiyya faith. 13 The RRT member accepted a number of matters upon which the appellant's claim for a protection visa was based: that there is political violence and conflicts between opposing political parties in Bangladesh; that sometimes those with political profiles are targeted for harm, including assault and death, by members of opposing political factions; that there is a rise in Islamic fundamentalism in Bangladesh; that persecution of those of Ahmadiyya faith in Bangladesh does sometimes occur; that those who are threatened or harmed for such reasons cannot get protection in Bangladesh; that the appellant, his father and family support the BNP; and that the appellant has attended BNP meetings in Australia on two or three occasions. 14 The RRT considered, however, that it was necessary, despite these circumstances, to consider whether the appellant and his wife, as individuals, had a well-founded fear of persecution by reason of political activity or religious faith and whether there was real chance that they, as individuals, would be persecuted for one or more of those reasons if returned to Bangladesh. 15 Similarly, in relation to the claim for complementary protection under s 36(2)(aa) of the Migration Act, the RRT member considered that it was necessary to determine whether there substantial grounds for believing that the appellant or his wife faced a real risk of suffering significant harm in Bangladesh as a necessary and foreseeable consequence of being removed from Australia. 16 The RRT member did not accept: (a) that the appellant was targeted for harm by the authorities in Bangladesh or by Awami League supporters because of his BNP membership and activities in the past, or that the appellant feared harm on that account; (b) that the appellant had left Bangladesh because he feared harm; (c) that there is a real risk that the appellant will suffer serious or significant harm because of his Ahmadiyyan faith or because of his political profile. In fact, the RRT did not accept that the appellant and his wife were genuinely of the Ahmadiyya faith, given the infrequency of the appellant's mosque attendances, his lack of knowledge of tenets of the Ahmadiyya faith and the absence of evidence of any objective conduct indicating commitment to that faith. 17 The RRT member found instead that: (a) the appellant had come to Australia to study; (b) the circumstance that the appellant did not apply for a protection visa until 9 November 2012 (more than five years after first arriving in Australia and one year after the expiry of his Student visa) was inconsistent with him having a well-founded fear of persecution in Bangladesh; (c) the circumstance that the appellant had returned to Bangladesh between 23 June and 28 July 2008 and again between 17 September and 5 October 2009 was also inconsistent with him having such a fear. In this respect, the RRT did not accept the account which the appellant had given of his return to Bangladesh in 2008 and 2009; (d) while a poultry business which the appellant had started in Bangladesh in 2010 with his father in law had failed because of activities by political enemies of the appellant's father in law, this had not had anything to do with the political profile of the appellant. 18 The RRT member then concluded that there was no plausible evidence that the appellant had been targeted for harm, or that he would suffer persecution, in Bangladesh by reason of his political opinions, imputed political opinions, religion, membership of a particular social group or for any other Convention reason, that there was no plausible evidence that the second appellant was Ahmadiyya, that she suffered persecution or would suffer persecution in Bangladesh because of her religion or because she is a member of a particular social group, and that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant or his wife being removed from Australia to Bangladesh that there was a real risk that they would suffer significant harm, so as to satisfy the complementary protection criterion.
Grounds of appeal: Ground 1 19 Ground 1 was based on what was said to be a contradiction between the content of the catchwords on the face page of the FCC Judgment, on the one hand, and [86] of the Judge's reasons, on the other. The catchwords are as follows: Application to review decision of former Refugee Review Tribunal (now the Administrative Appeals Tribunal) - whether failure to inquire - no jurisdictional error. 20 The appellant focused on the words "failure to inquire - no jurisdictional error" and submitted that these were inconsistent with the Judge's statements in [86] that "it has not been established that there was a failure by the Tribunal to make an obvious inquiry about a critical fact the existence of which was easily ascertained in the sense considered in SZIAI". 21 Contrary to the appellant's understanding, there is no contradiction. He has inappropriately, ignored the word "whether" appearing before the words "failure to inquire" in the catchwords. When regard is had to the term as a whole, the catchwords cannot be reasonably regarded as containing a positive finding that there had been a failure to inquire by the RRT member; they were instead identifying an issue addressed in the reasons. 22 The FCC Judge's reasons in [86] concerned a letter bearing the date 23 December 2013 which indicated on its face that it had been signed by Md. Abul Khair Bablu, who described himself as being President of the BNP Dhanmondi Thana Committee. In the letter, Mr Bablu certified that the appellant had been "heavily involved in the politics of BNP while he was in Bangladesh until June of 2007", that the appellant had been organising secretary of the Dhanmondi Thana student wing of the BNP, and that the appellant had been "one of the most dedicated student political field workers of the BNP". Mr Bablu went onto say that the appellant had, while in Bangladesh, been "tortured and been (sic) suffered by the opponent of BNP". 23 The RRT member had doubts about the reliability of this letter. She raised those doubts with the appellant during the course of the hearing, pointing out to him that there was evidence that document fraud is common in Bangladesh. The appellant told the RRT member that she could telephone Mr Bablu, but she declined to do so. 24 In her reasons on the review, the RRT member concluded that the letter of 23 December 2013 was not "reliable evidence of the facts [stated] in that document". The FCC Judge concluded that it could not be said that the RRT member had failed to make an enquiry about a "critical" fact, the existence of which was easily ascertained, especially having regard to the appellant's evidence in the RRT that it "was very hard to get [Mr Bablu] because he's in hiding position. He's not in home. He doesn't come even to the BNP office". 25 Ground 1 of the appellant's Notice of Appeal does not contain a direct challenge to that finding, but, to the extent that it may be made, no error by the FCC Judge is established. It was a finding open to the FCC Judge on the appellant's own evidence. 26 This ground of appeal fails. Several of the appellants' remaining grounds of appeal also concerned the letter of 23 December 2013, and I will return to it shortly.
Ground 2 27 Ground 2 concerns part of the RRT reasons for dismissing the appellant's claim to fear persecution on the basis of religion. The FCC Judge recorded: [The RRT] rejected his claims that in Bangladesh he went to the mosque two or three times a month in 2004 and 2005 and couple of times in 2006 in circumstances where he could tell the Tribunal very little about the Ahmadiyya faith when given the opportunity to do so, and given that when asked when he became an Ahmadiyya he said that he was not yet Ahmadiyya although "mentally" he was, he liked them, he studied them, and he was interested in the Ahmadiyya faith, but he could not become an Ahmadiyya in Bangladesh. 28 In Ground 2, the appellant asserted: It's not true that I told that I was not Ahmadiyya yet but "mentally" was. What [I] said is that I was not baptised yet. 29 This complaint is not borne out by the transcript of the proceedings before the RRT member on 13 February 2014, which the appellant himself had provided. That transcript records the following interchange between the member and the appellant: Q: [Y]ou're saying you're not Ahmadi yet? A: Actually just in the process. Mentally I am but I think need to be with them for a couple of months or years after they adopt me as their member or something … process, I don't know. I'm not sure what that … 30 Accordingly, there is no error in the FCC Judge's treatment of this evidence.
Grounds 3 to 7 31 Each of Grounds 3 to 7 concerned, in one way or another, the letter from Mr Bablu dated 23 December 2013. It is not easy to identify the errors in FCC decision said to be raised by these grounds. 32 In part, the appellant seemed to complain about the RRT member's reference to evidence indicating the prevalence of "document fraud" in Bangladesh. However, this appears to be a distraction because the RRT member did not find that the letter was a fake or the result of "document fraud". Instead, as already noted, the RRT member found that, in the circumstances, she was not prepared to regard the letter as "reliable evidence" of the facts it stated. This was a finding open to the RRT member given that Mr Bablu had not identified the basis for his knowledge of the appellant or for his knowledge of the events he described in the letter. Nor had Mr Bablu disclosed the circumstances in which he had come to prepare the letter. These were significant omissions especially given Mr Bablu's statement that the appellant had been "tortured" in Bangladesh. The appellant himself had made no claim to that effect. The evaluation of the evidence was a matter for the RRT: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [95]. In my opinion, no jurisdictional error is shown in the RRT's evaluation of the letter. 33 Grounds 4 and 6 concerned whether the appellant had made a request to the RRT that it verify the letter of 23 December 2013 by independent means. In my opinion, some of the appellant's answers to the RRT member can be construed as a request to that effect: Q: … So I have to decide if this document is reliable evidence of what it says in it. Now, what did you want to say? A: You can ring him or … Q: I'm not going to ring him because I cannot ascertain to whom I'm talking. A: OK. So you can do the investigation, otherwise whatever you like. Q: I'm not going to investigate this document, I'm going to listen to what you say, take into account what you say, take into account the country information … A: This is 100% true document … Q: I'm going to assess what's in this document because having regard to the information I've got about document fraud and having regard to the assessment I make about your credibility after I've - when I'm assessing this letter. … 34 As can be seen, the appellant did suggest that the RRT member could make her own investigation and she told him expressly that she would not be doing that. Although some of the RRT member's responses to the appellant appear to have a peremptory quality, they do not, in my opinion, evince a refusal or failure by the RRT member to make an enquiry concerning a critical matter by means readily available to her so as to constitute jurisdictional error. It was for the appellant to put what evidence he chose before the RRT: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). The letter of 23 December 2013 was a piece of evidence, to be assessed by the RRT member along with all the other evidence. As already noted, the RRT member did not make the finding that the letter was the product of document fraud, only that she was not prepared to regard it as reliable evidence. The FCC Judge did not err with respect to these matters. 35 In Ground 7, the appellant challenged the FCC Judge's conclusion that it could not be said that it would have been easy for the RRT member to ascertain the reliability of the letter. He submitted that the BNP is one of the two big political parties in Bangladesh and is well known in Bangladesh. That may be so, but, as already noted, the appellant himself had already told the RRT member of the difficulties he had had in making contact with Mr Bablu. 36 In Ground 5, the appellant raised concerns about the RRT member having asked him "why" he had obtained the letter of 23 December 2013. The appellant appears to be concerned about the appropriateness of the question. However, it is understandable that the RRT member wished to understand the circumstances in which the letter had come into existence. That was not a matter which could establish jurisdictional error.
Conclusion 37 In my opinion, none of the appellants' grounds of appeal indicate error by the FCC Judge. These are my reasons for the order made on 2 November 2016 that the appeal be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
SZUDB
Minister for Immigration and Border Protection