Federal Court of Australia

BDS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 112

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from a decision of a judge of Division 2 of the Federal Circuit and Family Court of Australia (Circuit Court). Her Honour dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The merits review application was made to the Tribunal’s predecessor, the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of a protection visa to the appellant. The appellant is a citizen of Sri Lanka who arrived in Australia by boat in 2013.

2    The appellant’s second amended notice of appeal (NOA) contains seven grounds of appeal. Two of them, appeal grounds 4 and 5, assert error on the part of the primary judge corresponding to the two grounds of judicial review contained in the appellant’s further amended application before her Honour. The remaining grounds of appeal constitute allegations made against the primary judge of apprehended bias (ground 1), actual bias (ground 2), denial of procedural fairness (ground 3), and failure to carry out her Honour’s judicial review functions (grounds 6 and 7).

3    The Court invited counsel for the appellant to consider over the luncheon adjournment whether he wished to maintain the actual bias ground, with counsel having addressed that ground for over two of the three hours allowed for his submissions. Prior to the commencement of his reply submissions, counsel advised the Court that he was not pressing ground 2, but was relying on the submissions on that ground in support of ground 1 alleging apprehended bias. That was the correct decision as the allegation of actual bias was baseless.

4    For the reasons that follow, the appeal must be dismissed with costs. None of the remaining grounds of appeal, including the allegation of apprehended bias, nor the judicial review grounds upon which they were based, were ever sustainable.

Background

5    The appellant came to Australia from Sri Lanka by boat in April 2013. Less than a month later, in May 2013, he participated in an “Irregular Maritime Arrival Entry” interview with an officer of the Department of the Minister, with the assistance of an interpreter. The face of the typed record of interview, signed by the appellant, indicates that he was told that the interview was his opportunity to provide any reasons why he should not be removed from Australia.

6    An entry interview of the kind conducted with the appellant is self-evidently a screening process, which enables the immediate removal of those who arrive without an identified basis to be able to remain in Australia. While whatever is said in such an entry interview may be relevant to any subsequent application for a protection visa, especially if something is said which is inconsistent with later claims made, it forms no part of the process of applying for that visa.

7    In July 2013, two months after the entry interview, the appellant was granted a bridging visa, which enabled him to be released from immigration detention. The appellant’s protection visa application process commenced later in July 2013 with an application form 866B, and in early August 2013 an application form 866C was submitted, supported by a statutory declaration by which he made his protection visa claims.

8    The appellant’s 2013 claims for protection in his statutory declaration were substantially the same as those made in his entry interview, referring to the actions towards him by a man called Sagara and, in different circumstances, by a man called Nanthan (also seemingly referred to as “Nandan”).

9    The Tribunal summarised those claims as follows (at AAT[8]):

In his statutory declaration dated 1 August 2013, submitted with his Protection visa application, the applicant claimed that he will suffer persecution in Sri Lanka due to his imputed political opinion and membership of the particular social group of campaign supporters over his encounter with Sagara; and that he will suffer significant harm due to a lack of police protection from Nanthan’s criminal gang who abducted and assaulted

Sagara

a.    The applicant fears harm from Sagara, a supporter of the Sri Lanka Freedom Party (SLFP) involved in criminal activities, with whom he had an altercation during the 2010 elections, while putting up posters in his village in support of ‘his party’, ‘the opposition party’. When he and his friend fled on their motorbike, Sagara chased them with a knife but fell down and was injured after the applicant pushed him away. A few days later Sagara came to the applicant's shop and told his father that one day he would kill the applicant.

b.    The applicant did not see Sagara again until early on the morning of 1 January 2013, when he ran into him by accident. He understood that Sagara had been in jail for two years. The applicant went up to Sagara to apologise as he was afraid of his threat. However, Sagara assaulted him and again threatened to kill him but the applicant managed to get away. His father told him that Sagara came to his house with others, broke some glass, set fire to the applicant’s motorbike and again threatened to kill the applicant.

c.    He fears that, if he returns to Sri Lanka, he will again be targeted by ‘SLFP supporter’ Sagara because of what happened when he was chasing him because of his work for ‘the opposition party’. As Sagara is a supporter of the ruling party, he fears that the police will not protect him as they support the ruling party.

Nanthan

d.    The applicant fears harm from Nanthan, a customer at his uncle's jewellery store, who misused his bank account in an illegal way, by conning people to deposit into it money they were paying him to take them to another country; while leading the applicant to believe it was his own money in payment for his daughter’s wedding jewellery.

e.    After allegations were made that he had cheated the payees, the applicant was summoned to’ Mannar police station. After explaining to the police what had happened, he was able to avoid detention by providing the documents in relation to the jewellery purchase. Later, in court, the complainants confirmed that he was not the person who had asked them for the money, so he was ‘released on bail’ and then told by the court to produce Nanthan, otherwise he would not be released.

f.    He managed to locate and photograph Nanthan at the funeral of a friend's father. However, when he brought police officers from nearest police station to see him, Nanthan was no longer at the funeral. He also advised the Mannar police station that he had seen Nanthan.

g.    ‘Somehow’ Nanthan became aware that the applicant had taken photographs of him. These were saved on his phone, as well as-on a memory card and on his computer. One day while walking home, he was assaulted and abducted in a van by Nanthan's associates and taken to a house where he was assaulted and the phone and memory card taken. After they burned his leg with a meta! rod and threatened to burn his face, the applicant admitted that he still had photos on his computer at home. Nanthan then arranged for someone to collect the hard drive from the applicant’s house, while one of his associates sexually assaulted him. Left alone, the applicant managed to escape. He tried to make a complaint to police but was told that they couldn't help him, so he went into hiding with a friend in Chillaw for around three months. While he was there, his family told him the people had been round looking for him.

h.    He fears that if he is returned to Sri Lanka, Nanthan and his associates will find him and kill him and the authorities will not protect him as he is still involved in the court case and still has to appear in court. He believes that Nanthan has connections in the police force as he could only have found out about the photos from police. He does not believe that anywhere in Sri Lanka is safe for him.

Before the Tribunal

10    In late January 2015, the appellant applied for merits review of the delegate’s decision by, ultimately, the Tribunal. The Tribunal affirmed the delegate’s decision in February 2017.

11    As revealed by the hearing transcript, the conduct of the three-hour merits review hearing before the Tribunal was relatively straightforward. The appellant was represented by a migration agent. During the hearing, the appellant gave evidence in support of his claims for a protection visa as set out in his statutory declaration, also relying upon documents provided by him. That evidence was largely not accepted by the Tribunal. In substance, the appellant failed in his endeavour to obtain a protection visa by reason of adverse credit findings by the Tribunal. The Tribunal found the appellant’s account was inconsistent with country information, contained internal inconsistencies, and was fabricated in key respects. Some of the Tribunal’s findings of inconsistency may have been unfounded to a minor degree.

12    As reproduced in an extract of the Tribunal hearing transcript in the primary judge’s reasons at PJ[77], and referred to by the Tribunal at AAT[26], during the course of the hearing the Member told the appellant about the prevalence of document fraud in Sri Lanka, and advised that unless a document was verified by the Minister’s Department, it was difficult to attach weight to it, clearly encompassing the documents that the appellant relied upon.

13    The appellant sought to rely on six documents that he characterised as “court documents”, but when regard is had to the primary judge’s description of them reproduced below, and on examination of the face of those documents reproduced in the appeal book, that description is apt to mislead. None of those documents purported to be issued by a court, and only one of them even purported to have been created by a court.

14    Importantly, as found by the primary judge, at no stage did the Tribunal make any finding that any of the six documents were in fact forgeries. The arguments by counsel for the appellant to the contrary both before the primary judge and before this Court to that effect were incorrect, and meant that a large portion of the case he advanced before the primary judge and on appeal was misconceived. Her Honour also correctly found that the Tribunal had before it the Departmental files, which included the arrival interview, documents submitted by the appellant and his statutory declaration: see PJ[84]-[88].

Before the Circuit Court

15    On 17 March 2017, the appellant lodged an application for judicial review of the Tribunal’s decision. An amended version of that application was heard by another judge of the Circuit Court and was dismissed in 2017. That decision was overturned by Flick J in 2018 and remitted for rehearing: BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683.

16    The appellant filed a further amended application dated 7 September 2023, reflecting two of the appeal grounds before Flick J, which was heard by the primary judge on 1 November 2023. Her Honour delivered a detailed judgment dismissing that further amended application just over two weeks later on 16 November 2023.

17    The sitting time before the primary judge was just over two hours and 15 minutes, producing 50 pages of transcript. Of that, counsel for the Minister spoke for about seven minutes, reflected in two pages of transcript, while submissions by counsel for the appellant occupied over two hours and the remaining 48 pages of transcript, with only relatively short periods of time being taken up by anything said by the primary judge.

18    The further amended application before the primary judge contained the following grounds of judicial review:

Ground 1

The Tribunal committed jurisdictional error in that the Tribunal failed to: (i) consider whether corroborative evidence which consists of several court documents was genuine and (ii)    give any genuine consideration, as to what extent it corroborated significant aspects of appellant’s claims of fear of harm.

Particulars

There were six court documents relating to his problems with Nanthan, who was an alleged persecutor of the applicant.

(a)    CB 100-103 - Police report to the Magistrate, at Mannar Magistrates Court, Sri Lanka – dated 18/08/2011.

(b)    CB 104-107 – Police report to the Magistrate - dated 21/05/12.

(c)    The Bank Statement from [Name] National Bank, (CB108, 110-111) dated 18/07/11 sent by the Bank to the Officer in Charge, Special Criminal Investigation Bureau, Mannar, which was copied to the Magistrate and received by the Court.

(d)    CB 112-115 – Police report to Magistrate.

(e)    CB 116-122 – The Court order dated 23/08/2011.

(f)    CB 109 & top part of part of 120 - Record of call overs with the Magistrate’s name at the bottom.

(g)    If the content of the above corroborating documents were considered by the Tribunal it could have come to a different decision which is favourable to the applicant.

Ground 2

The Tribunal committed jurisdictional error in that it made strong adverse credibility findings about his problems with Sagara, which were not open on evidence or were unreasonable to make, and which led to the Tribunal’s rejection of the applicant’s case.

Particulars

(a)    At CB252[24] the Tribunal found:

(i)    The applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia; and

(ii)    This casts serious doubt over the credibility of his claims in general.

(b)    At CB252[28] the Tribunal stated that having found that the applicant fabricated his claims about Sagara, the Tribunal is not satisfied that the applicant has been truthful in his claims about Nanthan, thus destroying his credibility about an entirely unconnected set of claims.

(c)    The bases for the strong adverse credibility findings at [24] about the applicant’s claims related to Sagara, were weak and related to several matters in which the Tribunal took an extreme position which was unjustified.

19    Thus ground 1 was concerned with the six “court documents” produced by the appellant and relied upon by him to corroborate the claims he made about Nanthan; while ground 2 was concerned with the foundation for the adverse credibility findings about the claims he made about Sagara.

20    In addressing ground 1 at the judicial review hearing before the primary judge, counsel for the appellant spent a considerable amount of time focusing on the absence of an express reference by the Tribunal to the arrival interview, rather than addressing the allegation in that ground of an asserted failure by the Tribunal to consider whether the particularised six purported court documents were genuine and to consider whether they corroborated the appellant’s account about Nanthan. This was apparently done in order to challenge the Tribunal’s finding at AAT[25] that the appellant’s claims in relation to Nanthan were “vague, convoluted and confusing”, which was the subject of judicial review ground 1.

21    The decision of counsel for the appellant to make submissions about the entry interview was misguided for two reasons. First and foremost, the entry interview was obviously not relevant to ground 1, which was in terms concerned with the Tribunal’s treatment of the purported court documents.

22    Secondly, the entry interview was in any event not relevant to the Tribunal’s characterisation of the appellant’s claims as “vague, convoluted and confusing”. Counsel for the appellant evidently assumed that the Tribunal was referring to his client’s written claims. The Tribunal at AAT[25] was referring to the claims that the appellant made in his oral evidence before the Tribunal, although that was in the context of examining his written claims. That much is clear from AAT[25] and the earlier AAT[21] referred to, reproducing them in order:

[21]    The Tribunal's concerns are compounded by the applicant’s inability to remember when the first incident with Sagara took place, or even the month of the 2010 election [26 January 2010]. Given the critical impact the applicant claimed these events had on his life and well-being, the Tribunal is not persuaded by the explanation offered by the applicant’s representative in his post-hearing submission, that he could not recollect these dates because he was nervous and was trying to put his past behind him and move on with life in a new country.

…

[25]    The applicant's claims regarding his unwitting involvement in Nanthan's scam and the sequence of events that followed were vague, convoluted and confusing. The applicant was vague as to when the key events, including being summoned to the Mannar police station and the court, took place, beyond saying it was sometime in 2011. For the reasons elaborated in paragraph 21 above, the Tribunal is not persuaded by the explanation offered by the applicant's representative in his post-hearing submission as to why the applicant could not recollect these dates.

23    It follows that submissions about the entry interview could not assist the appellant in relation to claims made in the course of his oral evidence before the Tribunal being found to be “vague, convoluted and confusing”.

24    Counsel for the appellant amplified his misguided approach by reading a large slab of the typed entry interview to the primary judge, which could not assist either the appellant or the primary judge in dealing with judicial review ground 1. Given that the entry interview was not referred to in ground 1 of the further amended application, the primary judge legitimately and properly endeavoured to bring counsel back to the terms of that ground, to no avail. This gave rise to a dispute between counsel and the primary judge, due to counsel’s insistence that he did not have to confine his argument to the purported court documents which he asserted were corroborative of the appellant’s claims in relation to Nanthan, and therefore could persist with reliance on the contents of the entry interview. That argument was plainly untenable.

25    In the same vein, counsel for the appellant sought to raise with the primary judge whether or not the Tribunal had erred in identifying when the appellant’s supporting documents had been provided to the delegate. This too was not apparently relevant to judicial review ground 1.

26    When counsel for the appellant eventually addressed the six documents themselves before the primary judge, instead of pointing to any asserted jurisdictional error on the part of the Tribunal, he endeavoured to demonstrate that the purported court documents were genuine on their face, apparently seeking some kind of finding to that effect. This too was misconceived. The primary judge had no role in determining whether the documents were in fact genuine or not. As noted above, the Tribunal did not make any actual finding that the documents were not genuine, but rather found that limited or no weight could be placed upon them in the absence of verification. As considered in more detail below, that was plainly a course properly available to the Tribunal, especially in light of the country information about the prevalence of document fraud in Sri Lanka.

27    The approach of counsel for the appellant to judicial review ground 2 before the primary judge again involved departing from the terms of that ground as set out in the further amended application, reproduced above. However, the more important point to note is that the case that was advanced took issue with the basis for the Tribunal’s conclusion of fabrication in relation to the appellant’s claims about Sagara. At no stage did this rise above an attempt at merits review.

Overview of this appeal

28    The seven grounds of appeal, with lengthy particulars over 10 pages of the NOA, allege:

Ground 1:    Apprehended bias on the part of the primary judge arising from:

(a)    the conduct of the hearing; and

(b)    the primary judge’s reasons

Ground 2:    Actual bias on the part of the primary judge arising from both conduct of the hearing and her Honour’s reasons.

Ground 3:    Denial of procedural fairness by the primary judge in restricting the way in which the hearing was conducted by counsel and failing to decide the case fairly on the submissions and evidence.

Ground 4:    Error in finding that the Tribunal did not ignore the corroborative material before it (apparently related to the first of two grounds of judicial review before the primary judge).

Ground 5:    Error in law by failing to engage with the appellant’s evidence and submissions in relation to his problems in dealing with one of the two men in Sri Lanka, resulting in the Tribunal making erroneous adverse credibility findings (apparently related to the second ground of judicial review before the primary judge).

Ground 6:    The first of two allegations of the primary judge failing to carry out the judicial review functions of the Circuit Court by misunderstanding those functions.

Ground 7:    The second allegation of failing to carry out the judicial review functions of the Circuit Court by misapplying the law in relation to pleading judicial review applications and various aspects of refugee law and processes, leading to errors in the conduct of the hearing and making the decision.

29    As noted above, ground 2 alleging actual bias was abandoned at hearing after submissions had been made about it and the Court asked counsel to consider whether that ground should be pressed, with counsel for the appellant then relying on the submissions he had made on actual bias in support of ground 1 alleging apprehended bias.

Principles as to bias and procedural fairness

30    The appellant did not take any issue with the Minister’s summary in his written submissions of the relevant principles in relation to allegations of actual bias and apprehended bias, noting that all of the particulars of the bias allegations were relied upon for the allegation of denial of procedural fairness. It is convenient to reproduce that summary verbatim in relation to apprehended bias, being the bias ground that has been maintained (footnotes embedded):

[24]    In respect of apprehended bias concerning a judge, in Charisteas v Charisteas (2021) 273 CLR 289 (Charisteas) the High Court described the position as well-established [Citing: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner); Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (Concrete); Smits v Roach (2006) 227 CLR 423 (Smits); Michael Wilson & Partners v Nicholls (2011) 244 CLR (Wilson); Isbester v Knox City Council (2015) 255 CLR 135 (Isbester); and CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17)]. The relevant principles are:

(a)    A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of a question that she is required to decide [The so-called “double might” test concerns a real not remote possibility not probability: CNY17 at 87, [18]; Ebner at 345, [7]];

(b)    Application of this principle requires two steps: (i) identification of what it is said might lead a judge to decide a case other than on its strict legal merits; and (ii) a logical connection between the matter in (i) above and the feared deviation or departure from the judge deciding the case on its merits.

(c)    Following those two steps being taken, the reasonableness of the asserted apprehension of bias can be assessed.

[25]    In assessing the perspective of a fair-minded lay observer it is the Court’s view of the public’s view and not the Court’s own view which is determinative: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 (QYFM); the observer is a necessary construct in the maintenance of public confidence in the judicial system: at [45].

[26]    The fair-minded observer is: neither complacent nor unduly sensitive or suspicious; cognisant of human frailty; aware that a judge is human; not assumed to have a detailed knowledge of the law or of the character or ability of a particular judge; understands that a judge by reason of training, experience and fidelity to the judicial oath will have a greater capacity than most to discard the irrelevant, the immaterial and the prejudicial: QYFM at [47]-[48] [See also Johnson v Johnson (2000) 201 CLR 488 at 509, [53]].

Allegations of apprehended bias (grounds 1(a) and (b))

31    The appellant identified for the court seven segments of the hearing before the primary judge that he alleged supported his ground of actual and apprehended bias, providing both a recording of the entire hearing and separate recordings for the seven segments. Prior to the appeal hearing, the members of the Court listened to the entire recording of the hearing before the primary judge, while reading the transcript. As a result of being advised of this, counsel for the appellant decided that it was not necessary to play the seven segments of that recording, comprising some 40 minutes of hearing time, in the courtroom. That was appropriate, especially as counsel had advised that he did not propose to make any submissions while the segments were being played.

32    It is clear from listening to the hearing recording before the primary judge, with a focus on the seven segments relied upon by the appellant, that the hearing before her Honour was conducted by his counsel, who is also counsel before us, in an unfortunate and misconceived way as identified above, although not lacking in courtesy. In particular, as also noted above, counsel insisted on making lengthy submissions about the entry interview, including reading substantial portions of it aloud.

33    There is no doubt that her Honour became frustrated and irritated by the inefficient and misguided way that the hearing was being conducted, especially in relation to judicial review ground 1. That resulted in a few mild reactions on the part of her Honour to what was taking place. It also entailed a degree of sternness by her Honour in trying to bring counsel back to the case advanced by the terms of the further amended application, and with it a degree of terseness. However, contrary to the appellant’s submissions to this Court, the primary judge did not shout at him at all, but rather occasionally raised her quite soft voice when he interrupted her Honour. The submission that the hearing was conducted by the primary judge in a partisan or authoritarian way was misconceived. Her Honour did no such thing.

34    Many of the other adverse characterisations of what took place are exaggerated or otherwise misstated. Many of those allegations are so clearly without any merit and baseless that it is not appropriate to repeat them.

35    The appellant, or perhaps more accurately, counsel appearing for him before the primary judge and before this Court, overreacted to what had taken place in the hearing before the primary judge, misunderstood the Tribunal’s reasons in key respects, misunderstood her Honour (despite the clarity with which her Honour spoke) and failed to understand fundamental limitations in bringing judicial review proceedings and presenting submissions about them in court. It was not permissible to attempt to engage in merits review of the Tribunal’s decision, yet that was a significant feature of what took place before her Honour. The continued assertion at the appeal hearing that this was not what was taking place only serves to indicate that counsel for the appellant did not properly appreciate the distinction between judicial review and merits review.

36    Other features of the hearing before the primary judge which were relied upon to establish apprehended bias may be dealt with by reference to a summary of the further contentions made by counsel for the appellant.

37    The first contention, that the primary judge improperly prevented counsel for the appellant from reading material out loud, is answered by the fact that the primary judge was perfectly entitled to express a reasonable requirement that she be left to read for herself passages which were relied upon from the Tribunal transcript, from Tribunal reasons, judicial review grounds in the further amended application, and from authority, rather than waste hearing time having them read out loud to her. This was not a proper ground for asserting apprehended bias, and did not evidence this in any event.

38    The second contention that the primary judge denied counsel for the appellant reasonable time to present his case is similarly not made out when due regard is had to all the circumstances. The Circuit Court is a busy trial court. Contrary to express submissions by counsel for the appellant at the appeal hearing, the modern and legislated approach of requiring the efficient dispatch of the business of a court is not confined to lengthy or complex matters. This was a relatively straightforward case in a narrow compass involving two relatively simple grounds of judicial review.

39    While the hearing before the primary judge was not listed for a confined time period, given the nature of the hearing it should not have taken any more than half a day to be heard. Counsel for the appellant, having elected, in an apparently planned way, to spend most of the time available to him pressing points of no apparent relevance, inefficiently reading things out that her Honour could read for herself, then pleaded to be given more time, effectively to make up for his inefficiency and failure to comprehend the errors in his approach. Her Honour’s refusal to allow the case to run into the afternoon, which is the substance of what was being sought, was not, in the circumstances of this case, evidence of apprehended bias.

40    The third contention that the primary judge made personal criticisms of counsel appearing for the appellant and did not ask questions of counsel then appearing for the Minister, are similarly baseless. The primary judge was entitled to express views about issues and difficulties about the way in which a case was being run, and to ask counsel to focus on the grounds in the further amended application. A dispassionate listening to the hearing recording, and reading of the transcript, reveals no more than understandable frustration on the part of her Honour with counsel’s determination to continue advancing arguments that were not properly directed to the grounds of judicial review, maintaining untenable arguments such as those advanced in relation to the entry interview, and insisting for a significant part of the hearing time on reading out material verbatim in lieu of addressing the significance or relevance of the passages relied upon. This was an unfortunate display by counsel for the appellant, met with a mostly restrained response by the primary judge. Nor was there anything wrong with the primary judge not needing to ask much of counsel for the Minister, whose submissions were significantly more confined. Once again, none of this entailed any evidence of apprehended bias.

41    The fourth contention, relying on the published reasons of the primary judge, does not rise higher in substance than taking issue with the adverse conclusions reached. Her Honour’s reasons were carefully and appropriately expressed. Even if those reasons can be taken into account in relation to an allegation of apprehended bias, it is not a basis for apprehended bias that a judicial officer does not accept arguments that have been advanced as to the applicability of what has taken place or been said in prior cases, or even makes an error in doing so (which was not established in any event). There was no breach of the law of precedent as asserted.

42    Nothing the primary judge said or did constituted any basis for any apprehension of bias.

43    Appeal ground 1 must fail.

Allegation of denial of procedural fairness (ground 3)

44    The allegations of a denial of procedural fairness rely upon the apprehended bias grounds already addressed and rejected above. Just as none of them were capable of establishing apprehended bias, none of them demonstrated any denial of procedural fairness. This conclusion is reinforced by the conclusion reached below about appeal ground 5, arising out of the failure of judicial review ground 2, that indicates that any additional arguments that might have been made by the appellant if more time had been allowed could not possibly have made any difference to the outcome. That is because the case sought to be advanced rose no higher than merits review, as dealt with below in relation to appeal ground 5. There was no practical injustice in the primary judge not allowing further time to advance an inherently impermissible argument.

45    Appeal ground 3 must fail.

Allegation of failure to carry out judicial review functions (grounds 6 and 7)

46    These grounds do not rise higher than rebadging the apprehended bias and denial of procedural fairness grounds addressed above. There was no failure on the part of the primary judge to properly carry out her judicial review functions. Appeal grounds 6 and 7 must therefore fail.

Alleged error in failing to find the Tribunal ignored corroborative material (ground 4)

47    The substance of this appeal ground, which corresponds to judicial review ground 1 below, was addressed in considerable detail by the primary judge at PJ[64]-[94]. It must fail at the first hurdle because the Tribunal did not ignore corroborative material in the form of the so-called court documents. Rather, the Tribunal made clear at the Tribunal hearing that not much weight could be given to those documents in the absence of them being verified.

48    The Tribunal’s express concerns about the documents sought to be relied upon was not addressed by the migration agent appearing for the appellant, either at that hearing or in the further submissions for which an extra week was sought and granted. It is open to debate as to whether the ultimate conclusion reached by the Tribunal was that of not much weight being given to those documents, or whether the Tribunal took the additional step, as the primary judge found, of no weight being given to them at all. Nothing ended up turning on this distinction, if it existed.

49    As the following analysis demonstrates, the documents that were produced in an attempt to corroborate the appellant’s case were of little assistance, even ignoring the contents of them summarised by the primary judge as reproduced below, which was most unlikely to have meaningfully advanced the appellant’s case before the Tribunal in any event.

50    The primary judge’s summary of the six documents the appellant relied upon to support his account of what he said had taken place in relation to Nanthan was as follows (at PJ[32]):

Documents in Support of visa application

The applicant relied, in his application for protection, on a number of documents relating to his arrest and subsequent Court proceedings, translated into English, which he refers to as “court documents” in his submissions to this Court. These comprised of:

(a)    “Sri Lanka Police Submission of Information to Magistrate” dated 18 August 2011:

(i)    Bears court seal of District and Magistrate Courts of a particular city, 11 December 2012 (on original, although translated copy indicates this is illegible);

(ii)    Refers to an earlier report of 7 July 2011;

(iii)    Informs the court the police are investigating the embezzlement of moneys, that they have identified the applicant’s account as the one where money was paid into, and the applicant is now to be arrested. However, the suspect Nandan’s address is still unknown; and

(iv)    Adjournment sought.

(b)    “Sri Lanka Police Submission of Information to Magistrate” dated 21 May 2012:

(i)    Bears court seal of District and Magistrates Court of a particular city, 11 December 2012;

(ii)    Refers to earlier reports;

(iii)    Informs the Court the police have completed all investigations and that no information could be obtained in respect of the address or whereabouts of the suspect;

(iv)    Police are of the view that “attempts would be made to obtain information about the primary suspect from the secondary suspect who is currently in custody”; and

(v)    Handwritten on bottom “Court saying that if can locate Nanthan then [the applicant] can be… (illegible). It is unclear from the handwritten notation whether this was someone’s opinion as to what the document is said to be saying, or if it is an additional notation as to what else the court said on the day the matter was before it.

(c)    Document bearing header “[City] National Bank” which is said to be produced to the court pursuant to its order dated 7 July 2011, in respect of the account number identified in the police investigation.

(d)    Untitled document with seal of District and Magistrates Court dated 11 December 2012, but bearing date 30 August 2012, where a named person is advising “that the second suspect (the applicant herein) had made with an accident and is warrant in the hospital”.

(e)    “Sri Lanka Police Submission of Information to Magistrate”:

(i)    This document does not appear to be dated and appears to be incomplete;

(ii)    It is a report from the police to the Court in respect of its investigation following a complaint about N.Nandan asking for and accepting money on the premise that he would be able to obtain the plaintiffs work in the Netherlands. Moneys were deposited into an identified bank account and further time was required for ongoing enquiries; and

(iii)    Handwritten notation on the original “Statement given by [the applicant] to Police Re Nanthan”. It is unclear from the handwritten notation whether this was an opinion as to what the document is said to be saying. The translated document itself appears to be a statement from the police about a complaint made to it by a person identified as the “plaintiff” who paid money to Nanthan, and not a statement from the applicant to the police.

(f)    Untitled document identified in Court Book as “Statement by applicant’s lawyer, with translation”:

(i)    The document names N.Nanthan as suspect 1, and the applicant as suspect 2;

(ii)    There is a notation that the second suspect has met with an accident and is warrant in the hospital;

(iii)    The document notes: “Suspect present”;

(iv)    This document appears to include a summary of the submissions made by a lawyer in respect of the suspect’s involvement in the financial transactions with “Nanthan”. The lawyer requested that the suspect who is 21 years old be released on bail;

(v)    The document then contains a summary of what the police submitted to the Court, including the following “We have no objection to releasing Nandan on bail until we obtain sufficient evidence”; and

(vi)    The document contains a summary of the orders made by the Court, including that “the suspect was released on personal bail of Rs.100,000.00. He has to report to the police station on the last Sunday of each month.”

51    In relation to the fourth document, summarised at PJ[32(d)] reproduced above, one addition that needs to be made to the description provided by the primary judge is that the otherwise blank page with the stamp purporting to be from a District and Magistrate’s Court, in addition to text in Sinhalese script, is a sentence in English, and the purported name of a magistrate in English. In the appellant’s written submissions before the primary judge, reproduced by her Honour at PJ[62], this was described as being a record of call overs with the magistrate’s name at the bottom. Further up the page there is also a purported illegible signature over the word Magistrate in Sinhalese script, but that is not referred to in the appellant’s written submissions before the primary judge. There is no explanation for this mixture of Sinhalese script and English, nor any explanation as to why an internal file note of that kind would be stamped as received as though it was provided to the court, or why it would be given to anyone outside the court, which could readily have given rise to an adverse conclusion as to doubtful provenance and authenticity. Yet the Tribunal still did not go further than expressing concern at the Tribunal hearing about the lack of verification for these documents, and refer to being unable to “attach much weight” to them in the hearing, and later to being unable to “attach weight” to them in the reasons at AAT[26]. There was no finding by the Tribunal that any of those six documents were in fact not genuine, as opposed to concerns being expressed about their unproven authenticity.

52    As is apparent when reading the above descriptions, while examining the copies of the documents in the appeal book, five of these six documents, on their face, were not created by, at or in any court, but rather purportedly sent to a court. At most, they might have been something that would sit on a correspondence file, which only begs the question why the appellant could obtain and produce correspondence, but he could not produce any court issued documents. Thus, all but one of the documents furnished and relied upon by the appellant do not purport to be documents created by any court. Rather, all but one of them purport to be documents provided to a court and bearing what purports to be a stamp with the name of a court, apparently being in the nature of a date received stamp.

53    The remaining document, as noted above, purports to be an internal file note made by two magistrates (perhaps the same person, perhaps different), recording on the same page events two months apart, one entirely in Sinhalese and the other in both Sinhalese and English, but with a date received stamp two months after the second event. Those features have a significant bearing on the ability of the Tribunal to draw any sound inference as to provenance or authenticity from the face of these documents, with the assistance provided by the presence of a received stamp purporting to be that of a court being slender, especially in the face of concerns expressed by the Tribunal about fraudulent documents in Sri Lanka by reference to country information.

54    None of the six documents relied upon by the appellant before the Tribunal were “court documents” as that term would ordinarily be understood. The stamps appearing on them bear the name of a court, but the presence of those stamps could properly be regarded as being insufficient to address the Tribunal’s legitimate concern about them being genuine, especially in the context of the following observations by the Tribunal at the hearing (T-44.31-37):

Another issue that I am bound to take into account is the prevalence – is the fact that there is a lot of document fraud in Sri Lanka. DFAT is aware that there are fraudulent letters of various sorts and other documents that can be provided for asylum applications. So unless a document is verified by the department it is very difficult for me to attach much weight to any documents that are submitted in support of an application. That doesn’t apply just to your case, that applies to Sri Lankan cases generally …

55    Counsel for the appellant sought to place extensive reliance on BUW16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 238 in which the Court found jurisdictional error because the Tribunal failed to consider whether court documents were genuine, failed to give them any genuine consideration and failed to consider whether they corroborated significant aspects of the appellant’s claims. Counsel went as far as to submit that the facts in that case were so closely aligned as to make that authority “strictly binding on the current case”. The reliance on BUW16 was misconceived.

56    In BUW16 there was no suggestion that the documents did not purport on their face to be “court documents”. Further, as set out in BUW16 at [51], the Tribunal’s reasons with respect to the court documents in BUW16 did not extend beyond the following observation:

The applicant has provided copies of court documents relating to the claim he gave evidence in court proceedings and as discussed in the course of the hearing, the Tribunal indicated that the Tribunal would further consider the weight that it would place on those documents and that document fraud could occur in Sri Lanka.

57    Further, in BUW16 the Tribunal stated in its decision record at [59] that in reaching its findings it had “considered the court documents” but had earlier found at [45] that the appellant had not “provided any corroborative documents” of the court proceedings: BUW16 at [51]-[54].

58    In these circumstances, the Court concluded in BUW16 at [57]:

Notwithstanding the extent to which the Court Documents provided independent corroboration of material aspects of the appellant’s claims, the Tribunal made, at best, a fleeting reference to the Court Documents and did not provide any reasons for why it had not given any weight or significance to them. The generic observation at DR [57] that “document fraud could occur in Sri Lanka” does not carry with it any finding that the Court Documents were fraudulent, unreliable or could be ignored. It does not rise higher than an almost self-evident proposition that “document fraud” can occur at any time in any country. The Tribunal did not address whether there were any indicia, either in the manner in which the Court Documents were procured by the appellant or the form or content of them which may have provided a basis for a concern or finding that the documents were fraudulent.

59    Contrary to the submissions advanced by counsel for the appellant, the reasoning in BUW16 is not applicable to the Tribunal’s consideration of the alleged court documents in the present case, which extended well beyond a “fleeting reference” to a proposition that “document fraud could occur” in Sri Lanka, independently of any reference to country or other probative information.

60    In Minister for Immigration and Citizenship v SZNSO [2010] FCAFC 50; 184 FCR 485:

(a)    North and Lander JJ observed in part of [36]:

In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.

(b)    Katzmann J went a little further when her Honour observed at [50]:

Fourthly, having reached such a conclusion, as French J said in WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1580 at [20]-[21], there is nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight. Here, where the credit of the first respondent was very much in issue, there was certainly nothing illogical or irrational in rejecting the document she submitted to bolster it in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by her.

61    As a qualifier to the observations North and Lander JJ made in SZNSO reproduced above, it is not necessary that the credit of the person producing purportedly corroborative documents be “destroyed”. It is enough that a particular document produced by a person whose credit is in issue may properly be given little or no weight in the absence of provenance and authenticity being independently established. A decision maker does not have to proceed upon the basis that a person may effectively corroborate themselves by producing a document that supports their case without taking any step to verify it independently.

62    In the case cited by Katzmann J in the passage from SZNSO at [50] reproduced above, WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580, French J observed, supported by High Court authority, the limits that may be placed by a decision maker on purportedly corroborative documents that rely upon the visa applicant’s production of them (which in that case included reliance upon purported correspondence from the private secretary of a government Minister):

[20]    So far as the four documents mentioned in paragraphs (a) and (b) of ground 1 are concerned, the substance of the complaint made on behalf of the applicant is that the Tribunal made findings adverse to his credit and in particular as to his involvement in UNP politics in Sri Lanka and based those findings on material other than that contained in the four letters and, in essence, relied upon those findings to reject the statements made in the letters. This is said to have reflected an erroneous approach in that the Tribunal did not take the letters into account as possible corroborating evidence to be put into the mix in determining whether or not the claims as made by the applicant were true. In other words it is said to have inverted the proper process of reasoning.

[21]    In my opinion there is no jurisdictional error disclosed in this approach, nor anything that could be called an error of logic. The Tribunal, it seems to me, is entitled on the basis of evidence that is before it to make a finding as to the applicant’s claims and having regard to that finding, to reject assertions or to indicate by way of rejecting the assertions contained in the letters that it gives no weight to those assertions. This would seem to be compatible with the approach taken by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 where his Honour said (at [12]):

‘It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.’

In the joint judgment of McHugh and Gummow JJ it was said, referring to the decision of the Tribunal under review in that case, (at [49]):

‘If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by section 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.’

63    Doubtless there will be cases in which closer consideration of documents may enable some greater degree of reliance to be placed upon them, but this was not the approach taken by the Tribunal for obvious enough reasons, having regard to each of those six documents as described by the primary judge.

64    In light of the above authority, it is clear there was nothing wrong with the Tribunal expressing concerns about these documents on their face and deciding not to place weight on them, even if they might, in theory, in some way have advanced the appellant’s case had they been taken at face value. As the Tribunal observed at AAT[26], it was dubious that the appellant produced the six secondary documents, but did not produce a warrant for his arrest supposedly issued by the same court that he referred to, being the one document that he referred to having potential weight.

65    In any event, establishing the authenticity of the six documents relied upon was not attempted in the post-hearing submissions furnished to the Tribunal seven days later, being a period requested by the appellant’s migration agent. This was only sought to be done at the judicial review stage, but it was done in the manner of merits review not available before the primary judge. Where concerns about the provenance and/or authenticity of documents are openly raised as a concern during a Tribunal hearing, and that is not addressed, or is not able to be addressed, by the party seeking to rely on those documents, that is an additional reason a Tribunal may be entitled to give them little or no weight. That is what happened in this case, as was in substance found by the primary judge.

66    The primary judge went further. Her Honour reproduced an extract from the reasons of Flick J, in the course of setting aside a decision of a prior Circuit Court judge refusing relief in relation to the same Tribunal decision concerning the appellant, as follows (at PJ[81]):

In BDS17 v Minister for Immigration and Border Protection Flick J said:

[102]    The balance of that Ground asserted that the primary Judge erred in failing to hold that it was not open to the Tribunal to find that the documents which attracted the Tribunal’s observations at para [26] of its reasons were fraudulent and/or it was not open to give them “no weight”. As that paragraph made clear, the “prevalence of document fraud in Sri Lanka” was a matter which was “discussed” with the now-Appellant during the course of the Tribunal hearing.

[103]    Had it been necessary to resolve this aspect of the Ground of Appeal, the argument would have been rejected.

[104]    The reasoning of the Tribunal, it is considered, falls short of any finding that the documents were “fraudulent”; but there is no questioning the conclusion of the Tribunal that it “[could not] attach weight to any of the documents”.

[105]    The submissions advanced on behalf of the Appellant in the present proceeding were a mixture of speculation and assertion. The submission, for example, that it did “not appear that the Tribunal scrutinised the documents”, is not supported by the Tribunal’s statement (at para [15]) that it had “had regard to the applicant’s written and oral evidence to the Department and the Tribunal”. It is not lightly to be inferred that the Tribunal did not have “regard to” – or, to employ the language of the Appellant, that it had not “scrutinised” – documents in circumstances where it has indicated to the contrary. And the further submissions advanced to this Court, for example, that the “four court documents were comprehensive” and “so detailed that any fraud would become apparent to the reader”, are more submissions as to the weight to be given to the documents rather than submissions in aid of a conclusion that the Tribunal failed to give proper consideration to each of the documents.

[106]    This aspect of the Ground of Appeal, and the counterpart argument before the Federal Circuit Court, are (with respect) nothing more than invitations to the Court to engage in impermissible merits review. The now-Appellant was given the opportunity to address the Tribunal on the reliability of the documents in question when the matter was “discussed” during the Tribunal hearing. It was for that Tribunal, and not the Federal Circuit Court or this Court, to determine the weight to be given to the documents.

67    Flick J’s reasoning is sound and should be accepted. Contrary to submissions for the appellant, his Honour did not depart from established authority in any way, once the cases referred to are properly considered and understood. It is not necessary to carry out that analysis in these reasons.

68    Moreover, the primary judge went further than Flick J. Her Honour carefully examined what had taken place at the Tribunal hearing, and concluded, correctly, that it was clear that the Tribunal had considered all of the documents that the appellant had relied upon, including the so-called court documents. Her Honour also correctly concluded that the Tribunal did give proper, genuine and realistic consideration to the appellant’s evidence, including the so-called court documents.

69    Appeal ground 4 must fail.

Alleged error in failing to find that the Tribunal made erroneous adverse credit findings

70    The substance of this ground of appeal was the second ground of judicial review before the primary judge. It concerned the adverse credibility findings that the Tribunal made about the appellant’s purported dealings with Sagara. In his written submissions before the primary judge, counsel for the appellant took issue with all of the paragraphs of the Tribunal’s reasons dealing with Sagara, being AAT[18]-[24]. All but AAT[24] contained the relevant findings in relation to Sagara, which her Honour reproduced in full. AAT[24] then set out the conclusions the Tribunal reached as a result of those findings. The appellant adduced evidence of his submissions that were before the primary judge, without objection by the Minister.

71    The appellant’s submissions before the primary judge were carefully addressed by her Honour, going through each. A review of those submissions makes it clear that the substance of the case that the appellant sought to advance before the primary judge, and maintained on appeal, was no more than merits review, especially by describing the credibility findings as “extreme” while not identifying, much less establishing, any jurisdictional error in making them.

72    The Tribunal found the appellant’s evidence about the 2010 election campaign to be vague, implausible and inconsistent with country information, as detailed. As noted earlier in these reasons, in context, this was plainly a reference to the appellant’s oral evidence at the Tribunal hearing, rather than his written claims in his statutory declaration, although doubtless that was what his oral evidence was directed to. The Tribunal did not accept the appellant’s explanation for these inconsistencies, nor his inability to remember details of when events relevant to his claims took place. The primary judge examined each of these findings, and found that they were open to the Tribunal on the material available to it. The appellant’s case both before the primary judge and on appeal rises no higher than an emphatic disagreement with the Tribunal’s conclusions. There was no error on the part of primary judge, nor for that matter, the Tribunal.

73    Far from the primary judge not engaging with the evidence and oral and written submissions presented by the appellant, it is clear that her Honour dealt with this concisely but comprehensively. While the appellant’s oral submissions before the primary judge were limited by the time available, the ground of judicial review was a misconceived attempt at merits review, for which no amount of additional time could possibly have made any difference.

74    Appeal ground 5 must fail.

Conclusion

75    As all the grounds of appeal that were pressed (being grounds 1 and 3 to 7) have failed, the appeal must be dismissed with costs.

Associate:

Dated:    3 September 2024