FEDERAL COURT OF AUSTRALIA

BGK16 v Minister for Immigration and Border Protection [2018] FCA 413

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

The appeal

1    This is an appeal from the Federal Circuit decision dated 15 August 2017 which dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). In that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (the Act) and relevant regulations.

2    The appellant requires leave to rely on the grounds set out in his notice of appeal as these were not argued before the primary Judge. The Minister opposes such leave being granted because the grounds have no prospects of success.

Background

3    The appellant is a citizen of Bangladesh who came to Australia as an unauthorised maritime arrival on 6 December 2012. He applied for a protection visa on 8 May 2013, claiming that he was from a politically active family which supported Jamaat-e-Islami and which had been harmed by the Awami League and the police. The appellant’s application was refused by the Minister’s delegate on 31 October 2014 on the basis that his claims were not credible.

4    The appellant applied to the Tribunal for a review of the decision on 26 November 2014. His representatives provided written submissions, and he was represented at an oral hearing on 1 March 2016 where he was assisted by an interpreter. Further submissions were lodged by his representative following the hearing, along with a psychological report. The report detailed that the appellant was suffering from post-traumatic stress disorder. The Tribunal gave no weight to the report, since it was based on the appellant’s statements relating to his protection claims which the Tribunal did not accept. The Tribunal affirmed the refusal on 6 May 2016, largely because the Tribunal doubted the veracity of the appellant’s accounts of his experiences in Bangladesh, and found that he did not satisfy the refugee or complementary protection criteria.

Federal Circuit Court proceedings

5    As the primary Judge explained, the proceedings began with a show cause application filed by the appellant on 15 May 2016. An amended show cause application was filed on 15 September 2016. The appellant told the primary Judge that he intended to rely on both documents, both of which set out three grounds with particulars. The original grounds of review were:

1.    In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

2.    The tribunal failed to assess by harm on the basis of my claims.

3.    The tribunal failed to assess the present situation in Bangladesh since I left.

6    The grounds of review in the amended application were:

1.    In making decision, the Administrative Appeals Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

…

2.    I claim that the AAT made a jurisdictional error when it made decision in which the finding of reasons is confused. I argue that the Tribunal did not apply Real Risk Chance Test used in the Refugee Convention under Australian Law. Only depend on the DFAT reports.

…

3.    The Tribunal made a jurisdiction error when it did not consider my claims under the Complementary Protection Clauses.

7    In relation to the first ground in both documents (which are essentially the same) the primary Judge found that the material in the Court Book demonstrated that the Tribunal had considered all of the appellant’s claims and had not failed to take into account relevant considerations.

8    In relation to the original application the primary Judge found that

    ground 2 in the original application was “clearly incorrect”; and

    the Tribunal had considered current country information relevant to ground 3.

9    In relation to the amended application the primary Judge rejected both grounds on the basis that:

    In relation to ground 2: the decision record indicated that the Tribunal had applied the ‘real chance’ test in the context of both the refugee criterion and the complementary protection criterion. The primary Judge also noted that the Tribunal was required by s 499 of the Act and the relevant Ministerial Direction to take into account the DFAT country information assessments. There was no evidence of bias or of the Tribunal making its decision “with a closed mind”.

    In relation to ground 3: to the extent it asserted that the appellant satisfied the complementary protection visa criteria, the appellant in this ground was impermissibly inviting the primary Judge to undertake merits review.

10    The primary Judge therefore concluded that no claims of jurisdictional error were made out.

The grounds of appeal

11    In this appeal the appellant relies on the following grounds:

1.    The Judge of the Federal Circuit Court in his honourable judgement delivered on the 15 August 2017 failed error of law and relief under the judiciary Act. The Judge failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influenced by sufficient doubt.

2.    Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activities are mostly persecuted because of their role for the party like Jamaat-e-Islami. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

3.    I was denied procedural fairness, when the Tribunal member made opinion based on assumption and possibilities without any proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of my party leader all the level Jamaat-e-Islami workers are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government and the Authority. My party most leaders are Hang by so called trial. It well established independent report like Amnesty International Country Reports. Present circumstance very danger to me, the Tribunal undermined the danger, I will face if I am compelled to return Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

4.    Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 6 May 2016 in deciding my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

(Errors in original.)

12    The Minister opposes leave being granted for the appellant to rely on these grounds of appeal, submitting that they have no prospects of success for the following reasons:

    The grounds raise issues which were not before the primary Judge.

    Grounds 1, 2 and 3 do no more than express the appellant’s emphatic disagreement with the Tribunal’s conclusions and are therefore an attempt to engage the Court in merits review.

    Further in respect of ground 3, to the extent that ground 3 can be understood as challenging the Tribunal’s reliance on the DFAT country information, the ground also fails because:

○    the Tribunal is legally required to take it into account to the extent that it is relevant;

○    the Tribunal is permitted to determine the weight to give to that information as part of its fact-finding function; and

○    there was no evidence that more recent information was available to the Tribunal.

    In respect of ground 4, the decision record (which is the only evidence of what occurred during the Tribunal hearing) demonstrates that the Tribunal had complied with the natural justice requirements of the statutory code in Pt 7 Div 4 of the Act.

13    The appellant’s submissions do not address the grounds of appeal but consider whether the Tribunal’s decision was irrational and whether a sliding scale of review should be applied to humanitarian cases.

Consideration

14    As the Full Court explained in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 an appellate court will not usually allow an appellant to raise a new argument which it failed to put during the primary hearing when it had an opportunity to do so, and should only consider new arguments if it is expedient in the interests of justice. Factors for an appellate court to take into account include whether there has been adequate explanation for the failure of the appellant to raise the relevant issues at first instance, whether the proposed grounds have merit, and whether the respondent would suffer real prejudice if the proposed grounds were agitated. These principles have been reiterated in many subsequent decisions of the Full Court (see for example Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174, Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220).

15    In my view, it is appropriate to refuse leave to the appellant to rely on the grounds of appeal raised. While the appellant is a litigant in person and, without English as his first language it is clear to me that the grounds of appeal on which he seeks to rely have no merit.

16    I agree with the Minister’s submissions concerning grounds 1, 2 and 3 in that the appellant appears to simply cavil with the factual findings of the primary Judge. Similarly, the appellant does not explain in ground 4 how the Tribunal failed to follow the proper procedure as required by the Act in arriving at its decision. No such failure is apparent from the Tribunal’s decision record.

17    Insofar as concerns the submissions of the appellant, I note that they are in very similar terms to submissions I have recently received in other migration-related cases. Pertinently, the submissions bear no relationship to the grounds of appeal or the decision of the Tribunal itself. They do not disclose any error in the decision of the Tribunal, or that of the primary Judge.

18    The appropriate order is to dismiss the appeal, with costs.

Associate:

Dated:    28 March 2018