FEDERAL COURT OF AUSTRALIA

WZAVX v Minister for Immigration and Border Protection [2016] FCA 411

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia delivered on 16 September 2015, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 12 January 2015.

2    The appellant is a citizen of Bangladesh.

3    The appellant first arrived in Australia on a student visa on 16 July 2004, which was due to expire on 31 January 2006. The appellant’s student visa was cancelled on 19 January 2006. Following the cancellation of his student visa, the appellant was granted a bridging visa which expired on 31 January 2006. The appellant thereafter remained unlawfully in Australia until located on 16 March 2014, whereupon he was placed in immigration detention.

4    On 25 March 2014, the appellant lodged an application for a protection visa.

5    In his protection visa application, the appellant claimed that he feared he would be targeted and killed because of his political opinions and religious beliefs were he to be returned to Bangladesh. The appellant also claimed that he feared persecution because of his blogging activities.

6    On 5 May 2014, a delegate of the respondent rejected the appellant’s protection visa application. The Tribunal affirmed the decision of the delegate. As mentioned, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s decision.

the tribunal

7    The appellant was represented by a migration agent in his dealings with the Tribunal. Prior to the hearing, the migration agent forwarded to the Tribunal copies of screen shots of the appellant’s on-line blogging activities.

8    The Tribunal hearing took place on 30 July 2014, and the appellant appeared before the Tribunal and gave evidence on that day.

9    The appellant stated that because of his political activities, Islamic extremists and Jamat-e-Islam threatened to kill him, and this caused him to flee from his home in 2001. The appellant also stated that he was an atheist from a Muslim family and he feared harm because of his atheist beliefs.

10    Further, the appellant also said that he was a blogger and on-line activist who expressed his thoughts and views about Bangladesh. The appellant said that he had advocated secularism, war crime justice, and a ban on Jamat-e-Islam from Bangladeshi politics. He also stated that he had written against political inheritance and corruption. He produced a letter from Dr Imran Sarker, who described himself as President of the Youth for Peace and Democracy organisation, which stated that the appellant was an executive member of that organisation which managed an on-line activist blog site, which the appellant used.

11    The appellant said that because of his blogging and on-line activities, he had received various threats of harm. In particular, the appellant said that Islamic extremists had threatened him on Facebook with beheading, and had also threatened his family to such an extent that his brother was forced to quit his study and take a job on a ship. The appellant also claimed that he would be persecuted because of a new law in Bangladesh that he claimed targeted bloggers. He said that in recent times atheist bloggers had been detained and killed.

12    On 7 January 2015, the Tribunal rejected the appellant’s claim and affirmed the delegate’s decision.

13    The Tribunal found that the appellant was not a witness of truth, and considered that the basis of his claims were implausible. In particular, the Tribunal found that, while the appellant may have been nervous and stressed by his participation in the Tribunal’s hearings, his oral and written evidence provided only general accounts of the political situation in Bangladesh without specifically detailing his own alleged active participation.

14    The Tribunal accepted that the appellant’s family had had some involvement in Bangladeshi politics. However, the Tribunal found it unlikely that the appellant’s political activities had resulted in him achieving a profile that would cause him to be targeted were he to return to Bangladesh. The Tribunal did not accept that he had ever been threatened by Islamic extremists, and did not accept that he would be harmed in the future because of his family’s political connections and profile.

15    Further, the Tribunal did not accept that the appellant was a genuine atheist, and did not accept that he would face harm from any family member or any person or extremist group on the grounds that he was an atheist if he were to return to Bangladesh. The Tribunal did not accept that he or his family had been threatened because of his alleged atheism and his failure to attend mosque. The Tribunal observed that the appellant’s own evidence was that he was able to remain in Dhaka unharmed for four years without attending mosque in that period.

16    Finally, the Tribunal did not accept that the appellant’s blogging and on-line activities which he had started in Australia, had caused him to be of adverse interest to Jamat-e-Islam or any Islamic extremist organisation or any political opponent or group. This finding was based on a number of considerations.

17    First, the Tribunal doubted that the appellant could, in a country of millions of people, be personally identified by his nickname used in all blogging and on-line activities or that the nickname used could be associated with him or where he may reside in Bangladesh.

18    Secondly, the Tribunal did not accept as credible the appellant’s claims to have been actively involved in blogging, or in any on-line blogging organisations, or with the Youth for Peace and Democracy organisation. The Tribunal found there to be only limited evidence to support the appellant’s claimed status in blogging and on-line activities. The Tribunal had regard to the letter that the appellant had provided to the Tribunal from Dr Imran Sarker, as well as copies of the appellant’s articles and on-line activities, but did not find that these demonstrated or supported the appellant’s claims to have been heavily involved in blogging and on-line activities, or to have a leadership position in these on-line organisations.

19    The Tribunal also discussed the operation of s 91R(3) of the Migration Act 1958 (Cth) with the appellant. The appellant claimed that he had joined his blogging groups in 2012, which was some time prior to his application for a protection visa being lodged, because of his continuing interest in Bangladeshi politics because he was an atheist and was opposed to Islamic groups. However, the Tribunal rejected the appellant’s claim and was satisfied that the appellant’s sole purpose in blogging and joining on-line atheist groups was to support an application for a protection visa. As a result, the Tribunal noted that it must disregard this conduct when considering the appellant’s claim to have a well-founded fear of persecution on this basis.

20    The Tribunal also considered whether, pursuant to s 36(2)(aa) of the Migration Act, there were substantial grounds for believing, that as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he would suffer significant harm as defined in s 36(2A) of the Migration Act.

21    In essence, the Tribunal found, that by reason of the factual findings that it had made, in considering the appellant’s claim for a protection visa, that the complementary protection criteria under the Migration Act were not satisfied.

the federal circuit court

22    On 16 February 2015, the appellant brought an application for a constitutional writ within the Federal Circuit Court’s jurisdiction pursuant to s 476 of the Migration Act. The appellant relied upon four grounds of review in the originating application, and the primary judge considered another four grounds of review, referred to by the appellant in his affidavit filed on 25 August 2015. The Federal Circuit Court dismissed the appellant’s application for judicial review.

the appeal

23    The appellant filed in this Court a notice of appeal dated 5 October 2015.

24    The appellant identified the following 11 grounds of appeal in his notice of appeal:

1.    The Tribunal had constructively failed to exercise jurisdiction.

2.    The Tribunal had failed to take into account relevant materials and consideration.

3.    The Tribunal failed to make relevant enquiries into critical facts the existence of which was easily ascertained under Migration Act 1958.

4.    The Tribunal’s decision is irrational, illogical, or so unreasonable that no reasonable decision maker could make it.

5.    The Tribunal take into account irrelevant consideration.

6.    The Tribunal made erroneous findings, reached mistaken conclusions on material questions of fact.

7.    The Tribunal asked itself wrong question.

8.    The Tribunal made findings based on “No evidence”.

9.    The Tribunal deprived me of natural justice.

10.    I will be killed if I go back. Many secular bloggers are slaughtered in Bangladesh in recent months and three of them are my friends.

11.    I was neglected by the Migration agent.

25    The respondent contended in his written submissions, that the grounds of appeal were defective in that the grounds did not identify any error by the primary judge and the appeal should be dismissed on that basis. I accept that the grounds of appeal are fatally defective.

26    However, in addition to the notice of appeal, the appellant also filed what he referred to as submissions. The submissions, like the grounds of appeal, were not directed to identifying any error by the primary judge. Rather, like the grounds of appeal, the submissions complained about aspects of the Tribunal’s conduct. The submissions paid no regard to the grounds of appeal and did not purport to address or elaborate upon the unparticularised assertions in the grounds of appeal. The submissions set out 30 different complaints about the conduct of the Tribunal. Strictly speaking, therefore, the submissions suffered the same fatal defect as the grounds of appeal.

27    However, rather than dismiss the appeal on the basis that the grounds of appeal are fatally defective, I will have regard to the submissions filed by the appellant, and try to relate the complaints to the findings of the primary judge.

28    The vast majority of the 30 complaints in the submissions expressed disagreement with the fact-finding processes engaged in by the Tribunal, the factual findings and the adverse credibility findings made by the Tribunal and also the conclusions reached by the Tribunal.

29    It is apparent that the appellant had made complaints to the primary judge about the Tribunal’s decision which were of the same nature as referred to in the preceding paragraph. In my view, the primary judge did not err in finding that the Federal Circuit Court did not have jurisdiction to embark upon a review of the fact-finding processes, the factual findings and the credibility findings made by the Tribunal, nor conduct a merits review of the appellant’s claims.

30    I will consider below the appellant’s complaints which did not fall into the categories referred to in [28] above.

31    One of the complaints made by the appellant related to the failure by the Tribunal to refer to a US Department of State report on Bangladesh published in 2014 which he said would have been available to the Tribunal. In view of the credibility findings, and attendant factual findings made by the Tribunal, country information was not crucial to the decision of the Tribunal. However, in making its decision, the Tribunal referred to the US Department of State report, Bangladesh 2012 International Religious Freedom Report, which said that Bangladesh’s constitution provides for freedom of religion, but the Tribunal also observed that “local authorities and communities often objected to efforts to convert persons from Islam”, with 90% of the population being Sunni Muslims and 9% being Hindus.

32    The appellant made a similar complaint about the Tribunal’s choice of country information before the primary judge. The primary judge found that the Tribunal had not fallen into jurisdictional error in the country information it had considered. In my view, the primary judge did not err in that respect. The question of the choice of which country information to refer to, or to rely on, is a matter for the Tribunal (Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 10 at [11] and [13]).

33    The appellant also complained that the Tribunal did not refer, in its reasons for decision, to any inquiries that it had independently made. I take that complaint to be a reference to ground 7 of the grounds of review before the primary judge. That ground of review alleged that the Tribunal had not made any inquiries into critical facts, the existence of which was easily ascertained under the Migration Act. The primary judge dismissed this ground of review. Before this Court, the appellant did not identify the critical and easily obtainable facts which may have given rise to a duty of the Tribunal to make inquiries. There is, otherwise, no duty on the Tribunal to make inquiries. In my view, the primary judge did not err in dismissing this ground of review.

34    The next complaint was that the appellant’s migration agent did not place before the Tribunal evidence of all of the appellant’s Facebook blogs which he had asked the migration agent to put before the Tribunal. The primary judge found that any failure by the migration agent to place this evidence before the Tribunal was not a jurisdictional error. In my view, the primary judge did not err in coming to this view.

35    I might observe in passing, that the evidence which the appellant adduced in support of this ground of review before the primary judge, appeared to disclose a disagreement between the migration agent and the appellant as to whether the appellant had actually given the migration agent any further evidence of his Facebook blogs other than the blogs which the migration agent had, in fact, put before the Tribunal.

36    However, at its best, the appellant’s claim, even if justified, could be characterised no higher than a complaint about the negligence of the appellant’s migration agent. It is well recognised that the negligence of a migration agent is not a basis upon which jurisdictional error can be founded (SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53] and Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443 at [30] and [33]).

37    Another complaint was that the Tribunal had wrongly applied s 91R(3) of the Migration Act when considering complementary protection. There is no substance in the complaint made by the appellant. In considering complementary protection, the Tribunal expressly had regard to the appellant’s blogging activities but found, based on its factual findings, that there were no substantial grounds for believing that as a consequence of being removed to Bangladesh, that there was a real risk that the appellant would suffer significant harm on that account. As mentioned above, the Tribunal’s findings in respect of complementary protection were based on the factual findings that it had made in respect of the appellant’s claim to be a refugee. The primary judge did not err in finding to that effect.

38    The next complaint was that the Tribunal’s decision was unreasonable. Before the primary judge, one of the appellant’s grounds of review was that the Tribunal’s decision was “irrational, illogical, or so unreasonable that no reasonable decision maker could make it”. In short, the primary judge found that the Tribunal’s decision was based on the credibility findings it had made in respect of the appellant, and on the attendant factual findings that it made. The primary judge said that the credibility findings were open to the Tribunal to make, and those findings and the attendant findings of fact, constituted a rational and logical basis for the Tribunal’s decision. In my view, the primary judge did not err. As the primary judge found, the Tribunal’s decision was founded upon adverse credibility findings and attendant factual findings. It could not, in my view, be said that the Tribunal’s decision, based as it was on those considerations, lacked an evident and intelligible justification.

39    The appellant has not demonstrated any error on the part of the primary judge. The appeal is, therefore, dismissed with costs.

Associate:

Dated:    21 April 2016