FEDERAL COURT OF AUSTRALIA

BYD16 v Minister for Immigration and Border Protection [2017] FCA 1535

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before me is an appeal from the Federal Circuit Court of Australia’s decision in BYD16 v Minister for Immigration & Anor [2017] FCCA 222. In that case, the primary Judge reviewed a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (the Tribunal) which affirmed a decision of a delegate of the first respondent (the delegate) to refuse to grant the appellant a Temporary Protection (Class XD) visa pursuant to the Migration Act 1958 (Cth) (the Act). The primary Judge dismissed the appellant’s application for judicial review and ordered him to pay the first respondent’s costs.

2    For convenience, I will outline the circumstances of the matter before turning to the grounds of this appeal.

Background

3    The appellant is a Bangladeshi man who arrived in Australia by boat on 6 May 2013. He first applied to the Department of Immigration and Citizenship (the Department) for a protection visa on 6 August 2013. After assessing the evidence provided to the Department, on 28 April 2015 the delegate refused the appellant’ application.

4    The appellant claims fear of being harmed by followers of the Awami League (the AL) political organisation due to his own support of Jamaat-e-Islami (JEI), a rival party. He claimed, inter alia, that he had been abducted, attacked and beaten up by supporters of the AL. The appellant also claimed he would be maimed or killed if he returned to Bangladesh as a consequence of his political affiliation.

5    The appellant claimed there were two main factors that contributed to his fear of physical violence: his family’s supposed political ties and his relationship with Ms S. First, BYD16 claimed he and his father were supporters of JEI, and there are often clashes between opposing AL and JEI factions. Second, the appellant claimed he began a relationship with Ms S who was from another family in the same village. Mr R, brother of Ms S, was upset because he and his friends were supporters of AL. They allegedly attempted to abduct and assault the appellant based on his differing political beliefs.

The Tribunal’s review

6    The appellant applied to the Tribunal for review of the delegate’s decision on 6 May 2015. In its findings dated 24 June 2016, the Tribunal considered whether the appellant had a well-founded fear of persecution in the reasonably foreseeable future and if there were substantial grounds for believing there was a real risk he would suffer significant harm if he returned to Bangladesh.

7    The Tribunal examined the appellant’s claims and evidence in support of his fear of persecution. I note at [49] of its reasons, the Tribunal found his claims of physical harm were “not credible”. The Tribunal was not satisfied the appellant had “a well-founded fear of persecution … now or in the reasonably foreseeable future if he returns to Bangladesh” (at [52]). It then considered if his circumstances gave rise to a real risk of significant harm and concluded (at [55]):

… there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Bangladesh there is a real risk [the appellant] will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.

8    Accordingly, the Tribunal affirmed the delegate’s decision.

Application in the Federal Circuit Court

9    On 22 July 2016, the appellant filed an application under the Act in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. The application contained no grounds of review. He later filed an amended application on 23 November 2016 which provided one ground of review as follows:

Ground 1: Failure to take into account relevant considerations

1.    The Second Respondent fell into jurisdictional error because it failed to take into account relevant considerations by not addressing and dealing with the Applicant’s claim or claims and its or their component integers.

Particulars

a.    Part of the Applicant’s claim for asylum on the basis of his imputed political opinion was that his grandfather and uncle were in the Jamaat-e-Islami (“JEI”).

b.    Part of the Applicant’s claim for asylum on the basis of his imputed political opinion was that his uncle held a high position in the JEI.

c.    Part of the Applicant’s claim for asylum on the basis of his imputed political opinion was that his family had a long association with JEI.

d.    In the alternative, the items particularised at paragraphs a. to c. above were unarticulated claims (or component integers) raised squarely on the material before the Second Respondent.

e.    Relevantly, the Second Respondent only considered the Applicant’s father’s connection with JEI and the Applicant’s own connection with JEI.

f.    The Second Respondent failed to consider the claims or integers in paragraphs a. to c. above.

g.    By reason of section 414 of the Migration Act 1958 (Cth) (“the Act”) read in conjunction with other provisions of the Act and the Migration Regulations 1994 (Cth), the Second Respondent was required to consider all of the Applicant's claims (and their component integers).

h.    In the premises, the Second Respondent failed to take into account relevant considerations made mandatorily relevant under the Act and failed to complete the exercise of jurisdiction embarked on.

(Original emphasis.)

10    In summary, the appellant sought the following orders:

(1)    The Tribunal’s decision to affirm the delegate’s decision be quashed;

(2)    The matter be remitted to the Tribunal to be determined according to law; and

(3)    The first respondent pay the applicant’s costs.

Primary Judge’s findings

11    The primary Judge observed the ambit of the amended ground of review was on the basis that (at [14]):

… the Applicant made an original claim that the JEI links of his father and of himself put him into a situation where he had a well-founded fear of persecution from the Awami League …

but noted that during the hearing, the appellant expanded his argument by adding (at [14]):

… his uncle was president of the JEI in another village, called Benapole, and his grandfather had been involved in the JEI in much the same way his father had.

12    His Honour succinctly summarised the nature of issue for determination:

15.    The argument is that whilst the Tribunal looked at the original claims, because the Applicant had expanded his claims to include his uncle and his grandfather, these further claims were not specifically dealt with by the Tribunal. It is trite to say that a Tribunal in exercising its jurisdiction must consider all claims made by an Applicant.

16.     Therefore, if this was a true claim that was made by the Applicant and it was not considered by the Tribunal, then the Tribunal has not done what they are mandatorily obliged to do. The Tribunal must consider the whole of the claim. So it’s a very small, neat point; however, it is still a complex one.

(Emphasis added.)

13    The primary Judge looked at whether the appellant’s claim was “an actual claim”; that is, a “substantial, clearly articulated argument” that “[relied] upon established facts” (at [17]). In doing so, his Honour cited [44], [48] and [49] of the Tribunal’s decision (at [18]-[19] of the primary judgment), which I, too, find of assistance to reproduce:

44.    The applicant told the Tribunal he was a supporter of JEI. He explained that meant he would attend JEI meeting with his father if the meeting was hosted at his father’s hotel. The Tribunal put to the applicant information from DFAT regarding the prevalence of political violence in Bangladesh, but that low level supporters of any political party did not face a real chance of harm. He replied his grandfather, father and uncle were in JEI and his uncle held a high position in the area of his hometown. His family had a long association with JEI.

…

48.    The Tribunal is willing to accept the applicant’s father is a devout Muslim who attended Mosque. However, the Tribunal rejects the applicant was a supporter or member of JEI. It rejects he attended any JEI meetings with his father at his father’s hotel. It rejects his father was a supporter or member of JEI. The Tribunal rejected above that AL supporters attacked the hotel of the applicant’s father and rejected they attacked the applicant’s father. The tribunal finds neither the Applicant nor his father had any connection to JEI. It follows that the Tribunal rejects there was any animosity between the applicant’s family and the family of Ms S due to political reasons or for any other reason. It further rejects the applicant’s father or uncle have been named in any court case nor that his father is in hiding or his mother, and siblings have relocated. The Tribunal considers the applicant has fabricated these claims in their entirety.

49.    The Tribunal has found above the applicant’s claims of past harm are not credible. The tribunal has rejected the applicant and/or his father having any connection to JEI, including arising from the applicant’s father being a devout Muslim who frequently attended mosque…

(Emphasis added.)

14    The primary Judge held that the appellant’s claim was not a substantial, clearly articulated argument based on established facts and, therefore, was not an assertion the Tribunal ought to examine (at [21]).

Primary Judge’s findings in the alternative

15    His Honour also considered the circumstances as if the expansion of the appellant’s claim to include his uncle and his grandfather had been taken to meet the standard of “an actual claim” which the Tribunal would have been required to assess. There appeared to be no evidence other than a “bald assertion” that the appellant’s uncle and grandfather were involved in JEI (at [27]). Further, the Tribunal’s references to the appellant’s “family” were determined to include only those family members who were purported to be directly involved with JEI – that is, the appellant and his father only (at [26]).

Primary Judge’s finding on Tribunal’s failure to consider peripheral connection to JEI

16    Despite the Tribunal’s finding that neither the appellant nor his father were personally involved in JEI, the primary Judge considered whether the Tribunal had failed to consider an hypothesis that contemplated whether his uncle and grandfather’s asserted affiliations to JEI posed a risk to the appellant should he return to Bangladesh. His Honour noted this conjecture was a “very peripheral argument” and gave it “very little weight” (at [31]). In the course of its review, the Tribunal had looked at and assessed all the evidence. It was “not required to specifically enumerate all the hypotheses that could have arisen” (at [31]) and “[simply] because the Tribunal did not mention that it had considered that hypothesis and rejected it, does not mean that it had not actually considered it” (at [32]).

Primary Judge’s conclusion

17    His Honour found that the Tribunal did not commit a jurisdictional error, dismissed the application and ordered the applicant to pay the first respondent’s costs.

Appeal in the Federal Court

18    On 21 February 2017, the appellant filed a notice of appeal in the Federal Court and relied on the following two grounds of appeal:

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.

(Errors in original.)

19    The appellant sought the following orders in the appeal:

1.    The order of Federal Circuit of Australia dated on 01 February 2017 is set aside.

2.    An order that the First Respondent pay the applicant’s costs of these proceedings

3.    Such further or other orders as to the Court seem [sic] fit.

Consideration

20    The appellant was assisted by a Bengali interpreter before me on 18 May 2017. At the hearing, it was noted that the appellant’s grounds of appeal raised new grounds that were not raised at first instance before the primary Judge. The first respondent had already filed written submissions that addressed the new grounds and in that light I granted leave for the appellant to rely upon these fresh grounds.

21    The general requirement for the Tribunal to consider all claims made by the appellant is not contentious: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42] per Allsop J (as his Honour then was). However, as Counsel for the first respondent correctly submitted, the Full Court of the Federal Court found that the need to consider claims arises only when they are substantial, clearly articulated arguments that rely upon established facts: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263; SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214; [2016] FCA 45 at [37].

22    I note in particular the primary Judge’s remarks about the Tribunal’s overall consideration of the issues and evidence that was before it:

31.    … When the Tribunal has said at paragraph 52 that “it has assessed all of the evidence”, such a statement is capable of showing that the tribunal [sic] did look at all the evidence. The Tribunal was not required to specifically enumerate all the hypotheses that could have arisen on the findings that it had made, if it did not find that such a hypothesis was a matter that it needed to address.

32.    Simply because the Tribunal did not mention that it had considered that hypothesis and rejected it, does not mean that it had not actually considered it.

33.    As has been pointed out, even though a Tribunal says that they have assessed all the evidence, it does not mean that it has. It is for me to look at everything and to decide whether the Tribunal had actually assessed all that evidence. I am of the view that the Tribunal had done so.

(Emphasis added.)

23    Having regard to the material that was before the primary Judge, I find that it was open to his Honour to conclude that the appellant’s claims:

(1)    had been properly considered by the Tribunal during its review; or alternatively

(2)    were not substantial, clearly articulated arguments and not based on established facts.

24    In relation to the first ground of appeal I find that:

    The primary Judge was correct to conclude that the appellant’s claims had been considered by the Tribunal and his Honour’s findings in the alternative were sound;

    The Tribunal complied with the Act by considering, inter alia, ss 36 and 65 which together set out the criteria for granting or refusing protection visas;

    The Tribunal did not deny the appellant procedural fairness by finding his evidence was inconsistent and concluding he was not a credible witness. Section 424A of the Act afforded him procedural fairness because it required the Tribunal to provide the appellant with particulars of information adverse to the review (subs (1)(a)) and allow him the opportunity to comment or respond (subs (1)(c)). In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, the High Court held that where “the Tribunal’s disbelief of the appellants’ evidence [arises] from inconsistencies” it should not be “characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1).” I do not find the appellant’s reliance on Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 of relevant to this issue.

    The Tribunal was not obliged to take the initiative to specifically ask the appellant any questions related to Conventions. As Bennett J explained in SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475; [2009] FCA 1403 at [29]:

… it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims. It is not for the Tribunal to make the appellant’s case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his “nursemaid”.

(Citations omitted.)

25    In relation to the second ground of appeal I find that:

    The Tribunal’s finding that the appellant was not a credible witness was based upon evidence provided by the appellant, not his “inability to remember or recall various issues and the dates” as claimed. For example, the Tribunal observed (at [34]):

… His explanations for those inconsistencies and implausibilities resulted in further inconsistencies and implausibilities. The Tribunal considered the inconsistent and implausible evidence of the applicant together with his non-persuasive explanations weigh in favour of finding the applicant was not a credible witness and that he fabricated his claims …

    The appellant’s argument that s 425 of the Act was breached by the Tribunal’s finding that he was not a credible witness is flawed. Section 425 of the Act provides:

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

…

This requires the Tribunal to invite applicants to attend hearings at which they can give evidence and present their case. Failure of the Tribunal to offer a real and meaningful invitation within the scope of s 425 would give rise to a jurisdictional error: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33], [37] and [38].

The Tribunal wrote to the appellant on 22 February 2016 inviting him to attend a hearing “to give evidence and present arguments relating to the issues arising in [his] case.” The hearing was conducted on 29 March 2016. I am satisfied that the Tribunal complied with the requirements of s 425 of the Act.

26    In my view, none of the grounds of the appeal have merit. The appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    19 December 2017