FEDERAL COURT OF AUSTRALIA

AHV15 v Minister for Immigration and Border Protection [2016] FCA 237

ORDERS

THE COURT ORDERS THAT:

1.    The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2.    The appeal be dismissed.

3.    The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The Appellant has appealed the decision of the Federal Circuit Court (“FCC”) dismissing the Appellant’s application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the delegate of the First Respondent (“Minister”) to refuse to grant the Appellant a protection visa.

THE TRIBUNAL DECISION

2    The Appellant is a citizen of Bangladesh. He claimed that he was a leading activist in the Bangladesh Nationalist Party (“the BNP”) and had been targeted by the Awami League (“AL”). The Appellant claimed to have been assaulted several times by the AL. The Appellant also claimed that the police are searching for him and that he is not safe in Bangladesh. The Tribunal rejected those claims, finding that the claims were not credible. At [88] of its reasons, the Tribunal found that the Appellant’s credibility was so seriously undermined that there was no credible or trustworthy evidence before it upon which to make a finding that the Appellant is a Convention refugee or a person in respect of whom Australia owes protection obligations.

3    Paragraph [62] of the Tribunal’s decision relevantly also records that:

Post hearing submission

62.    Submissions were due on 26 February 2015. None were received by the close of business on that date. A request was made for additional time to provide further documents on 27 February 2015 but given that the deadline had passed the previous day and the matter had been outstanding since January 2013 the request was denied. Despite this, the applicant's representative sent the Tribunal additional documents including news articles at three minutes prior to the close of business the day following the expiry of the deadline for submissions. Some five minutes later, further documents from UNHCR and other sources were provided and all these additional documents were considered by the Tribunal. The Representative indicated in his covering email that the applicant was awaiting the translation of yet another news report that was to be provided to the Tribunal on or before 6 March 2015. The Tribunal has having afforded the applicant ample opportunity to present his case and been extremely lenient in terms of considering evidence provided following the expiry of deadlines proceeded to make its decision.

THE FCC DECISION

4    The Appellant sought judicial review of the Tribunal’s decision on four grounds but only grounds two and three are relevant to this appeal, namely:

2.    The Tribunal had acted unreasonably in refusing to grant extension to provide further information.

Particulars

The Applicant's representatives requested an extension on my instruction before the Tribunal decided to refuse my application an extension to provide further evidence citing a justifiable reason for seeking an extension. I requested the extension to allow time to provide a document in Bengalis with a translation from a NAATI translator. The Tribunal unreasonably refused the request.

3.    The Tribunal failed to provide adverse information to me to respond under s424(AA) in writing. The Tribunal in paragraph 89 raised concerns on the documents I submitted to the Tribunal. The Tribunal failed to provide sufficient information about these adverse information and failed to follow the correct procedure under s424(aa) to provide such adverse information to me to respond.

5    As to ground two, the FCC held:

4.    In relation to ground 2, it is clear that the Tribunal held a hearing at which the applicant attended to give evidence and was assisted by an interpreter and his registered migration agent on 18 November 2014. It is clear that there was a further hearing by the Tribunal on 12 February 2015, which the Tribunal summarised in relation to the applicant’s claims and evidence.

5.    It is also the case that there were post-hearing submissions that were due on 26 February 2015 and that on 27 February 2015, a request was made for an extension of time, which request was denied. In fact, further documents were provided shortly after that request was denied, and were taken into account by the Tribunal.

6.    The Tribunal declined to grant a further extension, having identified the ample opportunity that had been given to the applicant to present his case and the extremely lenient terms in which his evidence had been provided, following expiry of deadlines.

7.    I am satisfied it was consistent with the Tribunal’s statutory duty to decide to proceed to determine the review, having given the applicant a genuine hearing. It is not the case that the Tribunal must continue to postpone the determination of the review when an adequate opportunity has been given to present the applicant’s evidence and claims. There is no substance in relation to the ground 2 in the application.

6    As to ground three, the FCC held:

8.    In relation to ground 3, the concerns raised by the Tribunal as to the documents produced by the applicant are not matters of a kind that give rise to a breach of s.424AA. Further, I accept the first respondent’s submission that the information referred to in paragraph 89 falls into two categories of country information and the Tribunal’s own appraisal, neither of which give rise to any obligation under s.424A or 424AA. Accordingly, there is no substance in relation to ground 3 and it fails to disclose any jurisdictional error.

7    The FCC also rejected the other two grounds. It is unnecessary to refer to those grounds as they are not relevant to the present appeal.

THE APPEAL

8    The Appellant represents himself and has filed written submissions in support of the appeal. There are four grounds of appeal but the submissions largely deal with new claims and not the grounds in the notice of appeal. It is appropriate to start with the grounds raised by the notice of appeal.

Ground 1

9    Ground one alleges that the FCC erred in failing to find that the Tribunal “committed a jurisdictional error” in the finding that the Appellant did not satisfy the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth) (“Migration Act”) for a protection visa. It is alleged that the Tribunal:

(a)    “failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act”;

(b)    “failed to separate the Claim to be [a] Refugee and the fear of harm test for the provision of Complementary Protection”; and

(c)    “did not explain in the finding of reasons the real interpretation of Complementary Protection framed and added in the UN Refugee Convention”.

10    This ground of jurisdictional error was not raised in the Court below and therefore there was no error by the FCC in not making the finding now sought by the Appellant. If the ground is to be treated as raising a new ground of jurisdictional error that is sought to be agitated by the Appellant, the Appellant requires the leave of the Court to rely on it. The Minister did not suggest that there would be any prejudice to him if the ground was advanced but opposed leave on the basis that the ground is hopeless. I agree that the ground has no merit and leave should be refused.

11    There was no failure to apply the test for complementary protection under s 36(2)(aa) of the Migration Act nor failure to consider that claim. The Tribunal’s reasons clearly disclose that the complementary protection criterion under s 36(2)(aa) of the Migration Act was separately and correctly considered and dealt with by the Tribunal at [92]. That claim was always linked with the Appellant’s factual claims that were rejected by the Tribunal. The Tribunal concluded upon a detailed consideration of the evidence that the Appellant’s credibility was so seriously undermined that it should disbelieve the entirety of his claims about his affiliation with the BNP and his claims relating to the harm faced by him because of that affiliation. As a consequence, the Tribunal rejected the entire factual basis of the Appellant’s case and did not accept on the evidence before it the Appellant’s claim that he will suffer significant harm in Bangladesh if he returns there. Since the claims relied on by the Appellant were the same for s 36(2)(a) and s 36(2)(aa) of the Migration Act, it was open to the Tribunal to rely on findings made for the purposes of s 36(2)(a) in dealing with s 36(2)(aa): SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]; MZABA v Minister for Immigration and Border Protection [2015] FCA 711 at [92]. There was no error in the Tribunal relying on the same findings to hold that the Appellant is not a person to whom Australia owes protection obligations under s 36(2)(aa).

Ground 2

12    Ground two alleges that the FCC erred by failing to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction. This ground was not particularised and appears to be a generalised “catch-all” claim. It is not a proper ground of appeal.

Ground 3

13    Ground three alleges that the FCC erred:

(1)    by failing “to hold that the Tribunal made inconsistent assertions on the credibility testimony”; and

(2)    by failing to hold that the Appellant “was denied procedural fairness when the Appellant was denied extension of time to provide some credible evidence in support of his claim (which was pending for translation from Bengali to the English language)”.

14    The first allegation raises another new ground that was not agitated before the FCC and therefore there was no error by the FCC in not making that finding that is now sought by the Appellant. The Appellant has also not identified the specific basis of the claim and the Appellant’s written submissions do not deal with this ground at all. It is not apparent how this ground supports a claim of jurisdictional error and leave should not be granted to raise it.

15    The second allegation does raise a ground that was advanced below and dismissed by the FCC. The background to this ground is that there had been two hearings before the Tribunal, the first hearing on 18 November 2014 and a second hearing on 12 February 2015. On both occasions the Appellant was represented by his registered migration agent who filed written submissions and country information on his behalf. The Tribunal’s reasons record that after the second hearing, the Appellant was given until 26 February 2015 to file further documents and post hearing submissions but no material was received by close of business on that date. Instead, on 27 February 2015 the representative made a request for additional time to provide further documents “but given that the deadline had passed the previous day and the matter had been outstanding since January 2013 the request was denied.” The reasons also record that “despite this” the Appellant’s representative sent the Tribunal additional documents including news articles at three minutes prior to the close of business “the day following the expiry of the deadline for submissions” and that “some five minutes later, further documents from UNHCR and other sources were provided and all these additional documents were considered by the Tribunal.” The reasons also state that “ample opportunity” had been afforded to the Appellant to present his case and the Tribunal had been “extremely lenient in terms of considering evidence provided following the expiry of deadlines”.

16    The Appellant contended that he was denied procedural fairness because in fact the Tribunal had given him until 27 February 2015 to file the further material and when he attended the Tribunal registry on 27 February, he was told that he was out of time to file any further material and the Tribunal did not accept his documents. The Appellant also contended that the Tribunal could not have considered all the additional documents which his representative sent on 27 February 2015 because the decision was made that same day. The Appellant was given leave to rely on two affidavits in support of his contentions. One of the affidavits annexed the transcript of the hearing before the Tribunal and the transcript confirms that the Appellant was in fact given until 27 February 2015 to file any further material. The FCC did not have the benefit of the transcript when it dealt with this ground below. I also accept that the Appellant did attend the Tribunal registry on 27 February 2015 at around 3.50 pm and was told that he was out of time to file any further material.

17    Nonetheless, I do not find that the Appellant has been denied procedural fairness despite the Tribunal’s error about the due date for the filing of any further material. It is reasonable to accept that the Tribunal had regard to the additional documents as it stated it had. Those documents were received by it under cover of two emails from the Appellant’s representative – the first email was sent at 5.02 pm on 27 February 2015 in which the Appellant’s representative attached “further recent country information on persecution against BNP members and supporters”. The second email was sent at 5.08 pm, in which the representative attached “further recent country information on persecution against opposition political members and supporters” under cover of a submission. Significantly, although the Tribunal made its decision on the same day, the cover sheet records that the Tribunal member certified the decision and reasons at 10.13 pm that night. In the circumstances, there is no reason to doubt the veracity of the Tribunal’s statement that it did take into account the additional material sent by the representative on 27 February 2015.

18    As stated above, I accept that the Appellant did attend the Tribunal registry on 27 February 2015 at around 3.50 pm with the view to filing additional material but was not permitted to file that material. The Appellant told the Court that he had four additional newspaper articles which he had wanted to file and he identified two of those articles amongst the bundle of material that he had brought to Court. On inspection, both of those articles were amongst the country information which the representative had emailed to the Tribunal at 5.08 pm and accordingly that material was before the Tribunal in any event. Although the Appellant could not locate the other two articles, it seems that they also concerned incidents involving members of the BNP. It is possible that those other newspaper articles were not part of the material before the Tribunal but given the Tribunal’s rejection of the Appellant’s claimed affiliation, role and profile in the BNP, which the Tribunal did not find credible, it cannot be said that those articles would have materially borne upon the Tribunal’s decision if they were available to be taken into account. In the circumstances, I reject the contention that the Appellant has been denied full and proper opportunity to put all relevant evidence before the Tribunal.

19    Furthermore, I do not accept that the Appellant was denied procedural fairness or that the Tribunal acted unreasonably in refusing to grant an extension of time to the Appellant to put further material before the Tribunal. The request was first made in an email sent by the Appellant’s representative to the Tribunal at 2.50 pm on 27 February 2015. In that email, the representative advised that the Appellant had given documents to a NAATI translator to translate and the translation would be available by 6 March 2015. The representative requested an extension of time until 6 March to provide “further submission”. At 4.13 pm, the representative was contacted by someone in the Tribunal registry who advised that the request was refused as the Tribunal had given until 26 February to provide the post hearing additional information and “as the request for additional time was not received until today 27/2/15, [the Tribunal member] did not agreed (sic) to provide additional time to provide further submissions”. Despite this, the representative sent through the additional country information and submissions in the two later emails and the additional material and submissions were put before the Tribunal in any event. Tellingly, it appears from the email sent at 5.02 pm that there was only one newspaper article that the Appellant was waiting for a translation, which was not put before the Tribunal. Given that the Appellant had already been given until 27 February 2015 to put in further material, the Tribunal was entitled to refuse to grant the Appellant any more time.

20    Accordingly this ground also fails.

Ground 4

21    Ground four is unintelligible. As best can be made out, it appears to be an allegation of actual and/or apprehended bias on the part of the FCC towards unrepresented applicants and a claim that the Appellant was denied procedural fairness in respect of a costs order that the FCC made against him. The Appellant’s written submissions have not dealt with this ground and there is nothing in the material to indicate that there is any substance in either allegation.

NEW CLAIMS

22    The Appellant’s written submissions were substantially directed at new claims. The submissions are somewhat difficult to follow and appear, in the main, to be formulaic submissions that have been uplifted from somewhere else. The applicant requires the leave of the Court to rely on the new claims and leave should be refused as there is no merit in any of these new claims.

23    First it is claimed that the Tribunal relied on country information and inconsistencies in the Appellant’s claims in his visa application and his claims before the Tribunal as part of the reason for affirming the decision but failed to put those inconsistencies in writing to the Appellant for comment. Apart from the assertion, there was no elaboration on this ground and the specific basis of the claim was not made out.

24    Next it is claimed that the Tribunal did not deal with the “internal relocation principle”. That issue simply did not arise for consideration as the Tribunal did not accept that the Appellant had a well-founded fear of persecution, or that there is a real risk that he will suffer significant harm if he returns to Bangladesh as claimed.

25    Next the Appellant claimed that the Tribunal did not properly confirm with him that he understood the “crucial issues” and the failure amounted to a denial of procedural fairness and natural justice. There is no substance in that claim. The transcript of the hearing in the Tribunal is before the Court and discloses that the Appellant was represented by a migration agent, the hearing was conducted with the assistance of an interpreter, and the Appellant was given full and proper opportunity to present his case.

26    Next it is claimed that “crucial information” was not put to him by the Tribunal. Specifically the Appellant asserted that the Tribunal failed to disclose “the particular construction it gave to the information from the different independent sources”. Further, the Appellant contends that “there is a reasonable argument” that there was a failure to comply with s 424A of the Migration Act in relation to the decision of the Tribunal. This claim appears to be similar to the ground of appeal considered by the FCC at [8] of the FCC’s reasons, although not specifically raised as a ground of appeal from the FCC decision. The claim, in any event, has no merit. “Information” within s 424A(1)(a) does not include the Tribunal’s disbelief of the Appellant’s evidence nor does it encompass the Tribunal’s subjective appraisals, thought processes or determinations in weighing up the evidence: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123, 476–7 (ALR); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, [18]. The reasons of the Tribunal do record that the Tribunal did take into account country information about the prevalence of fraudulent documents produced in Bangladesh and that such country information was used by the Tribunal as part of its reasoning process not to afford weight to any of the documents upon which the Appellant relied supporting his contention that he was an activist in the BNP. The transcript specifically records that the Tribunal did put that country information to the Appellant (at T50–53) and gave the Appellant the opportunity to address the Tribunal’s concerns about the genuineness of the Appellant’s documents.

27    The Appellant also challenges the Tribunal’s finding that he was not a credible witness. Such a finding sits squarely within the domain of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, [67]; AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193, [38]. The Appellant did not demonstrate any reviewable error in this regard.

28    Next it was submitted that the Tribunal “misjudged” the claim and did not have a “fresh look” at the claim. That submission is no more than an impermissible merits review challenge to the findings of fact made by the Tribunal.

29    A specific allegation of actual or apprehended bias was also made against the Tribunal. There is no merit in that claim which, in substance, is also no more than an impermissible challenge to the findings of fact made by the Tribunal.

30    Finally, it was submitted that the Tribunal failed in its reasoning to show how the claims made by the Appellant and the evidence given by him in support of his claim did not satisfy the requirements for a protection visa. That submission cannot be accepted. The Tribunal reasons record a careful consideration of all the material before the Tribunal and disclose the Tribunal’s reasons for not believing the Appellant on his claims.

31    Accordingly, the appeal must be dismissed.

Associate:

Dated:    15 March 2016