FEDERAL COURT OF AUSTRALIA

ACA15 v Minister for Immigration and Border Protection [2016] FCA 107

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 27 August 2015: ACA15 v Minister for Immigration & Anor [2015] FCCA 2727 ("ACA15"). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 9 February 2015. The Tribunal affirmed a decision of a delegate of the Minister made on 27 August 2013 to refuse the grant of a Protection (Class XA) visa to the appellant.

Background

2    The appellant is a citizen of Bangladesh. He left Bangladesh in November 2011 and travelled to Malaysia and then to Indonesia. He arrived at Christmas Island as an unauthorised maritime arrival person on 15 June 2012. On 6 July and 16 August 2012, he participated in an Entry Interview in which he described in very broad terms that he and other members of his family supported the Bangladesh Nationalist Party (“BNP”) and that they had been threatened with death by members of the Awami League because of that support.

3    On 23 October 2012, the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) to permit the appellant to make an application for a Protection (Class XA) visa. The appellant lodged that application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) on 4 December 2012 following an interview the previous day with a migration agent who assisted him to prepare the application.

4    In support of his protection visa application, the appellant made a statutory declaration which contained further details of his claim. In the statutory declaration, the appellant claimed (among other things) that:

    members of the Awami League came to his family home “several times” and told his family to leave the village or they would be beaten. They also threatened to take his family’s land unless the family stopped supporting the BNP;

    members of the Awami League kidnapped the appellant at the end of 2008 and took him to a forest, held him for two hours and tortured him, put a gun to his head and told him to stop supporting the BNP and that he had to support the Awami League. After this he left his village and moved to Dhaka;

    his brothers also left the village to avoid being harmed;

    members of the Awami League came to his family home in November 2011 looking for the appellant and asking where he lived. After this, the appellant feared that they would start looking for him so he left Dhaka for Malaysia;

    while he was in Malaysia, he was told by his mother that one of his brothers had been killed by members of the Awami League so he decided to come to Australia and seek protection. He feared that he would be detained in Malaysia and returned to Bangladesh; and

    he cannot return to Bangladesh because he fears that members of the Awami League will harm him and that he will not be free to express his political opinions or otherwise support the BNP. He could not relocate within Bangladesh because Awami League members threaten and harm BNP supporters in all parts of Bangladesh and the authorities will not protect him.

5    The appellant attended an interview with a delegate of the Minister on 23 August 2013. On 27 August 2013, the delegate refused to grant the appellant a protection visa because he was not satisfied that he was a person to whom Australia has protection obligations under the Migration Act.

6    The appellant applied to the Tribunal for review of the delegate's decision on 13 September 2013. With the assistance of a Bengali interpreter, the appellant attended a hearing before the Tribunal on 11 November 2014 to give evidence and present arguments. He was represented by his lawyer via telephone. With the permission of the Tribunal, on 26 November 2014, the appellant’s lawyer filed post hearing written submissions in order to address issues raised by the Tribunal in relation to the appellant’s association with the BNP and the voter registration process in Bangladesh.

Tribunal Decision

7    On 9 February 2015, the Tribunal affirmed the delegate's decision to refuse to grant the appellant a Protection (Class XA) visa. The Tribunal set out its reasons in a Statement of Decision and Reasons of that date ("Decision Record").

8    The Tribunal determined that the appellant was not a credible witness because his oral evidence at the Tribunal hearing had been inconsistent with information previously provided to the Department and with his statutory declaration dated 3 December 2012: Decision Record at [10]. The Tribunal found that the differences in relation to the following matters reflected poorly on the appellant’s credibility and the reliability of his evidence. In making these findings, the Tribunal noted that it had taken into account the appellant’s evidence concerning his memory impairment:

(1)    The appellant told the Tribunal that he left his village in 2010 or between 2010 and 2011. In his statutory declaration he stated that he had left his village for Dhaka after his was kidnapped by the Awami League in late 2008. While the Tribunal did not expect the appellant to recall the exact date of these events, it was concerned by this difference in the testimony: Decision Record at [11]-[12].

(2)    The appellant sought to explain the inconsistency by saying that he has trouble retaining memory of things he has said and has trouble recalling dates. The Tribunal asked the appellant whether he had a medical condition. The appellant said that he had been referred to a specialist but had not seen one yet, that he takes medicine for internal problems but does not think this affects his memory and that he does not sleep well due to excessive tension. The appellant said that he is always worried and feels “his head is not working properly”. While taking this information into account, the Tribunal did not accept that it explained the inconsistency between the appellant’s oral evidence and his statutory declaration: Decision Record at [13]-[14].

(3)    The appellant told the Tribunal he had been kidnapped once and was then let go by the Awami League when he agreed to support them and that he left his village soon after this incident. However the decision record of the delegate notes that during the appellant’s interview he told the delegate that he had been kidnapped once, and then escaped, and then was re-taken by the Awami League: Decision Record at [15].

(4)    The appellant made no mention of being kidnapped during his Entry Interview held on 6 July 2012 and 16 August 2012. The Tribunal put this information to the appellant in accordance with s 424AA but was not persuaded by the appellant’s explanation that he had been asked a limited number of questions at his Entry Interview and that mentioning the kidnapping may have “slipped his mind in the rush”: Decision Record at [16].

(5)    The appellant's delay in leaving Bangladesh following the kidnapping. The Tribunal noted that the appellant claimed to have been kidnapped in 2008 (in his statutory declaration) or sometime between 2010 and 2011 (in his evidence at the hearing) yet he did not leave Bangladesh for Malaysia until November 2011. The appellant explained that he did not have money to buy a fraudulent visa and left Bangladesh after he discovered the cheaper option of travelling to Malaysia. While the Tribunal accepted that financial constraints may cause a refugee to delay fleeing persecution, it did not accept that this was a sufficient explanation for the delay in the circumstances: Decision Record at [17].

(6)    The appellant's reason for leaving Malaysia and travelling to Australia. At the hearing, the appellant told the Tribunal he left Malaysia because he was illegal and was being harassed for money by the police, the local Malays and the Tamils. However in his statutory declaration the appellant had stated that he left Malaysia because he feared that he would be detained and returned to Bangladesh and that after he had learnt that his brother had been killed that he decided to travel to Australia to seek protection. When this was put to him, the appellant simply combined the reasons: Decision Record at [18]-[19].

(7)    The appellant's recounting of what had happened to his younger brother. At the hearing, the appellant told the Tribunal that his younger brother went missing while the appellant was in Malaysia. However in his statutory declaration the appellant had stated that while he was in Malaysia his mother had told him that his brother had been killed by members of the Awami League. The Tribunal was not satisfied by the appellant’s explanation that his mother believed his brother was dead because he had not returned after he had gone missing, but that no one knew what had happened to him. The statement which he made in his statutory declaration had been based on his mother’s belief: Decision Record at [20].

9    The Tribunal found that the appellant was not a witness of truth and it was not satisfied that the appellant had told the truth about critical aspects of his claims. The Tribunal did not accept that he had a well-founded fear of persecution or that there was a real chance that the appellant would not be able to express his political opinion and support for the BNP (as it did not accept that the appellant held such an opinion), or that he would be killed or harmed by members of the Awami League or the authorities in Bangladesh if he were to return: Decision Record at [21], [27]-[28].

10    The appellant said that he was not a member of the BNP and that he did not vote in the 2004 and 2008 elections because he was not in the village when voter registration was undertaken. The Tribunal agreed with the appellant’s post hearing submission that not being a member of a political party did not mean that the person is not passionate about the party and it accepted the appellant’s evidence that the voter registration process reflected the Electoral Commission of Bangladesh’s webpage. However, the Tribunal had reservations about the fact the appellant had not registered to vote in Bangladesh and noted the appellant’s oral evidence that his activities were limited to taking some injured people to the doctor or hospital and canvassing for votes during the months leading up to the 2004 and 2008 elections. In the result, given the Tribunal’s “significant concerns” about the appellant’s credibility, the Tribunal was not satisfied that the appellant undertook any activities in support of the BNP and did not accept that the appellant was, or is, a supporter of the BNP: Decision Record at [22]-[23].

11    Due to the inconsistencies and differences in the appellant’s evidence, the Tribunal did not accept that the appellant was involved in the BNP branch in his village or that he was threatened as a result, or that the Awami League threatened to take his family’s land, or that he had been kidnapped (once or twice), tortured and had a gun put to his head, or that he ceased his involvement with the BNP as a result of the kidnapping (since the Tribunal did not accept that he had been involved with the BNP), or that he or his brothers had left his village, or that he was concerned about being found and targeted, or that members of the Awami League continue to visit his mother’s home looking for him, or that his brother was killed by members of the Awami League or that his mother was recently injured by them: Decision Record at [24], [31].

12    Whilst the Tribunal accepted the country information referred to in the appellant’s post hearing submissions which indicated that there is violence between supporters of rival political parties in Bangladesh, the Tribunal did not accept that the appellant held any political profile that would attract the adverse attention of anyone in Bangladesh or that he would be harmed or killed by members of the Awami League: Decision Record at [26]-[27].

13    Having rejected the appellant’s claims individually and cumulatively, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: Decision Record at [29]-[34].

Appeal to this COurt

14    The appellant filed a notice of appeal from the Federal Circuit Court's decision on 1 October 2015. The appellant’s three grounds of appeal were (as written):

1.    Hon. Judge SMITH of the Federal Circuit Court failed to hold that Refugee Review Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. The RRT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection. RRT decision is unreasonable with regards to Complementary Protection Provision. The appellant claims that His Honour did not discuss about the appellant's claim for complementary protection in his reasons for judgement. The Appellant claims that the Tribunal made decision without considering the recent information about the atrocities committed by the Awami League Party to the Opposition Party BNP is an error or a path leading to a judicial error is a itself to perform the statutory task imposed on the Tribunal by the Migration Act.

2.    The appellant was at risk of harm in Bangladesh for the reasons and for that reasons he was forced to flee from Bangladesh. The appellant has a legitimate expectation from the Hon. Court that it would make decision based on their own objective observation of materiials with regards to the appellant's claim according to the Migration Act.

3.    The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision ignored the basic principles of objective observation of materials presented by the Appellant. The Tribunal's whole arguments to affirm the decision of the first Respondent are unreasonable and against the procedural fairness. The Tribunal made decision with closed mind.

15    The appellant did not provide any written submissions in support of his appeal. The appellant appeared with the assistance of an interpreter. The appellant’s oral submissions in relation to these grounds reiterated his concern that he would be persecuted for being a BNP supporter if he were returned to Bangladesh with the result that he may be harmed or be forced to join the Awami League or be killed. The appellant also reiterated that he finds it hard to remember things which he has said, and that this has been a long term problem for him.

16    The Minister filed written submissions and appeared by his representative at the hearing.

Consideration

17    As a preliminary matter I note that the primary judge distilled five issues raised by the application for judicial review of the Tribunal’s decision filed on 2 March 2015 in the Federal Circuit Court. The five issues and the primary judge’s findings are as follows:

(1)    Issue: the Tribunal did not consider the claim made by the applicant that the authorities do not protect BNP supporters in Bangladesh. Finding: the primary judge held that the Tribunal had considered the underlying factual bases of the appellant’s claims and had rejected them. In particular, the Tribunal considered whether the appellant had anything to do with the BNP and rejected that claim. Logically this meant that the Tribunal was not required to go on to consider whether the appellant would face harm as a supporter of the BNP: ACA15 at [14].

(2)    Issue: the Tribunal failed to identify the difference between “serious harm” (which arises for consideration under s 36(2)(a)) and “significant harm” (which arises for consideration under s 36(2)(aa)). Finding: the primary judge found that the Tribunal had set out a correct understanding of the difference between “serious harm” and “significant harm” at paragraphs [41] and [47] of the Decision Record, but even if it had erred in this regard it would not have made any difference because the Tribunal had rejected the factual bases of the appellant’s claims: ACA15 at [15].

(3)    Issue: the Tribunal failed to assess the severity of the persecution the appellant would face if he were returned to Bangladesh. Finding: the primary judge found that as the Tribunal had made the factual findings which it did in respect of the appellant’s claim to be affiliated with the BNP, it was not required to undertake any qualitative assessment of what harm the appellant claimed he might face were he to return to Bangladesh: ACA15 at [16].

(4)    Issue: the Tribunal asked irrelevant questions, apparently aimed at the fact that the appellant was not a card holding member of the BNP. Finding: the primary judge noted that the Tribunal specifically dealt with the submission that the fact that a person was not a member of the BNP did not necessarily mean that the person was not a supporter of the BNP at paragraph [22] of the Decision Record. As the Tribunal found that the appellant was not a member or supporter of the BNP, this complaint was not well founded: ACA15 at [17].

(5)    Issue: the Tribunal failed to consider whether the appellant was a member of a particular social group, namely, a member of the BNP. Finding: the primary judge held that, having rejected the appellant’s claim to be a member of the BNP, the Tribunal was not required to consider further whether the appellant was a member of a particular social group. The primary judge expressed uncertainty as to the precise nature of the appellant's complaint in relation to s 36(2)(aa), but noted that the Tribunal had correctly considered the criterion set out in s 36(2)(aa) at paragraphs [30]-[33] of the Decision Record: ACA15 at [18].

18    The Minister submitted, and the appellant did not dispute, that the three grounds of appeal raised five issues for consideration. I will use the Minister’s framework to address the appellant’s grounds of review.

19    The first two issues raised by the appellant's grounds are:

(1)    that the primary judge erred (a) by failing to find an error in the test applied by the Tribunal to the complementary protection criterion and (b) by not discussing the appellant’s complementary protection claims in his judgment; and

(2)    the Tribunal made a decision without considering recent information concerning the Awami League thereby committing a jurisdictional error and it failed to consider materials presented by the appellant.

20    I find no error in the primary judge’s approach or findings on these issues. In relation to the first issue, the primary judge plainly did address the issue of whether the Tribunal considered the complementary protection provisions adequately. As the Tribunal had rejected the appellant’s claim that he was a BNP supporter, the complementary protection provisions could have no application. However the Tribunal did turn its mind to the possible application of the complementary protection provisions at [30]-[33] of the Decision Record and found that the applicant did not satisfy the criteria set out in those provisions. In relation to the second issue, as noted by the primary judge at ACA15 at [17], the Tribunal did consider the submission made by the appellant’s lawyer on 26 November 2014, the substance of which is dealt with by the Tribunal in the Decision Record at [22]-[23].

21    The third issue, raised by ground 2 of the notice of appeal, is that the appellant was at risk in Bangladesh and had a legitimate expectation that the Court would make a decision based on its own objective observation of the materials and claims. I accept the Minister’s submission that the second ground of appeal must be rejected on the basis that there can be no legitimate expectation that the primary judge would engage in an impermissible review of the merits of the appellant’s protection visa application.

22    The fourth and fifth issues are whether the Tribunal’s decision was “unreasonable and against procedural fairness” and whether the Tribunal made its decision with a “closed mind”. In ACA15 at [25]-[27], the primary judge considered written submissions to the same effect as ground 3 of the notice of appeal. The submissions considered by the primary judge were not tendered in the appeal to this Court.

23    The primary judge was unable to identify anything in the Tribunal’s Decision Record that supported any of the appellant’s claims in respect of bias: ACA15 at [25]. The primary judge found that the appellant had failed to satisfy the tests for both actual bias and apprehended bias relying, respectively, on Minister for Immigration & Multicultural Affairs v Jia (2001) 2015 CLR 507; [2001] HCA 17 and Refugee Review Tribunal; Ex Parte H (2001) 75 ALJR 982; [2001] HCA 28. The primary judge found that the Tribunal had given well-reasoned bases for each of its findings and that its findings of credit had been logically based on the significant differences between the appellant's oral evidence and his written evidence: ACA15 at [26].

24    I perceive no error in the primary judge’s approach or findings. I can discern no basis for a successful claim of bias or that the Tribunal’s decision was legally unreasonable or wanting in procedural fairness. Further, while the appellant re-iterated in this Court the claim made to the Tribunal that inconsistencies in his evidence may be explained by his inability to remember things which he has said, he did not suggest that this impairment made him unfit to participate in the Tribunal’s proceedings.

25    I accept the Minster’s submission that ground 3 is merely an expression of emphatic disagreement with the Tribunal’s decision and that the appellant has not made out appellable error by the primary judge or jurisdictional error by the Tribunal based on this ground.

Conclusion

26    The appeal should be dismissed. The appellant should pay the first respondent’s costs as agreed or taxed. I will make orders accordingly.

Associate:

Dated:    16 February 2016