FEDERAL COURT OF AUSTRALIA

APM16 v Minister for Immigration and Border Protection [2017] FCA 291

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) the requirement that the applicant make his application for leave to appeal in the manner and form specified in the rules be dispensed with.

2.    The application for leave to appeal filed 10 October 2016 is allowed.

3.    The applicant file and serve a notice of appeal in accordance with Part 36 of the Federal Court Rules 2011 (Cth).

4.    The appeal be heard at a date and time to be fixed by the Court.

5.    The costs of the interlocutory application be costs in the cause on appeal.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an application for leave to appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing the applicant’s judicial review application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). A decision under r 44.12 is interlocutory, so leave is required to appeal to this Court: Federal Court of Australia Act 1976 (Cth), s 24(1A).

Background

2    The applicant is a citizen of Bangladesh who arrived in Australia on 28 March 2013 and applied for a protection visa on 7 June 2013. A delegate refused that application on 15 August 2014. The applicant sought review of the delegate’s refusal in the Administrative Appeals Tribunal (the Tribunal). The Tribunal conducted a hearing on 13 November 2015 and, on 6 March 2016, affirmed the delegate’s decision. The applicant subsequently sought judicial review of that decision in the FCCA and that application was dismissed on 27 September 2016.

3    The applicant’s protection claim is made on the basis that he has been abducted, beaten and threatened by members of his first wife’s family and that he was targeted by the Awami League (of which his first wife’s family are members) for being a supporter of the Bangladesh Nationalist Party (BNP)

The Tribunal proceeding

4    The Tribunal considered whether the applicant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), on the basis of being a refugee, or the criteria in s 36(2)(aa), on the basis of there being substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he would suffer significant harm.

5    The applicant claimed, in summary, that:

(a)    His first wife went missing shortly after her relationship with the applicant ended, for which her father blamed the applicant. Over a period of several years prior to the applicant leaving Bangladesh his first wife’s father, family and associates of the family harassed, extorted and assaulted him, including abducting and torturing him.

(b)    The individuals who targeted him were members of the Awami League and they had been targeting the applicant because they knew him to be a supporter of the rival BNP.

(c)    He was a member of the BNP for several years and was known throughout the community as such.

(d)    Since he left Bangladesh, his first wife’s family and associates have continued to threaten the applicant’s father, including by stating that they will kill the applicant if they find him.

6    A statutory declaration detailing his claims for protection dated 7 June 2013 was before the Tribunal as part of his application for review of the delegate’s decision. The applicant told the Tribunal that he had been assisted to complete his visa application form and the statutory declaration by a legal representative. He also said that the contents of the declaration had been interpreted by a qualified interpreter, that someone had read the contents of the document to him and that he understood the contents when he signed it (Tribunal’s reasons at [24]).

7    In rejecting the applicant’s claims in their entirety, the Tribunal made eight adverse credibility findings. In respect of six of those findings, the Tribunal considered the applicant’s evidence to be inconsistent and unreliable. In respect of the other two findings (Tribunal’s reasons at [30]-[34]), it seems that the Tribunal found the applicant to have lacked credibility because, and only because, he failed to recite in oral evidence all of the threats and incidents involving harm by his first wife’s family (and associates) detailed in his statutory declaration.

8    On the basis of these factual findings, the Tribunal was not satisfied that the criteria in s 36(2)(a) or (aa) of the Act were met.

The FCCA proceeding

9    The applicant sought judicial review of the Tribunal’s decision in the FCCA.

10    His grounds of appeal before the primary judge were as follows:

1.     The AAT erred in law and erred in making findings of well-funded fear. The Tribunal wrongly applied the law to the fact as found to relation to the seriousness of harm that constitute persecution as a member of a particular social group and due to the political opinion presented the applicant claims.

Particulars:

Section 91 R 910 9 B0 79c) of the Migration Act requires the persecution to be of serious harm and systematic discriminatory. During hearing the Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecute asking why be harmed rather than address as to the motive. The applicant claims that the AAt misconstrued the facts.

The Applicant is a truthful witness when in a written reasons for claiming protection declared that his ability to recall particular dates and sequence of particular events is limited as he has minimal education. As a result the information provided at his transferee interview may not be entirely accurate. He has tried to provide information to the best of his knowledge.

The applicant declared he fears returning to Bangladesh. He left Bangladesh because his life was under constant threat.

The applicant very clearly and passionately told to the Tribunal all about the harassment and torture suffered by the followers of the Awami League and the father of separated wife. He told to the Tribunal that his fish farm was poisoned by father of his separated wife. All of the fish died immediately. He was not knowing whereabout of his separated wife. Wife’s family falsely accused him he is hiding his wife after separation. The applicant told to the Tribunal ofmany incidents of harassment and torture by the Awami League supportrs of that area, but the Tribunal discarded all of the evidence of torture.

2.     The applicant claims that the Tribunal discarded all the considerations without giving any solid evidence of any fabricated documents submitted to Tribunal. The applicant claims he was denied natural justice and procedural fairness when the Tribunal did not accept any written or oral evidence. It made decision with closed mind.

Particular:

In the decision the AAT found that the witness is not a witness of truth and it is not satisfied the applicant told trust in relation to critical aspects of his claims. Applicant claims that the Tribunal misunderstood or mistook the facts.

At the time of hearing the applicant was nervious and could not understand what the tribunal is asking and what the Bangali Interpreter is teling to the Member. The applicant found at many places during the hearing the Interpreter did not convey his words in English language to the Tribunal Members.

Applicant claims that he had no ability to express his evidence orally. He was always confused about what he is saying and what he understood the questions asked by the Tribunal.

3.     The Refugee Review Tribunal made a jurisdictional error when it failed to real test of persecution and harm according to the Migration Act. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

Particulars:

The Tribunal raised several irrelevant issues to discredit the facts. The Tribunal discarded all of the evidence of a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh. Applicant told the facts based on truth. He said that he was genuine fear from the supporters of Awami league. If he is compelled to go back he will be killed by the Awami League supporters. He said that he has no reasonable protection from the local authorities, He claims that the that there is no reasonable protection from the Bangladesh Government.

(Errors in original.)

11    Dismissing the application, the primary judge considered that the applicant’s claims sought impermissible merits review of the Tribunal’s decision (including the Tribunal findings on credit). The primary judge was not satisfied that the applicant had been denied procedural fairness or that the Tribunal applied the wrong test in respect of s 36(2)(a) or (aa), failed to take in account relevant considerations or considered irrelevant matters.

The application in this Court

12    On 24 February 2017, the applicant filed an affidavit annexing medical certificates dated 8 and 10 January 2017 and requested an adjournment of the hearing listed for 9 March 2017. The parties were advised that the adjournment request would be considered at the hearing on 9 March 2017.

13    The medical certificate dated 8 January 2017 stated that the applicant was suffering from anxiety, depression, severe stress and certain gastrointestinal maladies. The medical certificate dated 10 January 2017 stated that the applicant presented with symptoms consistent with depressive disorder and anxiety and that he was “mentally unwell and does not appear fit enough to carry out an Interview for the court at this stage”. The applicant’s affidavit also annexes a number of receipts and invoices for medical services, as well as paperwork related to a surgical procedure that the applicant underwent in 2016.

14    The Minister submitted that the medical certificates provided by the applicant were deficient because they did not address the question whether, and if so why, the applicant’s medical condition(s) would prevent him from participating effectively in a court hearing: Singh v Minister for Immigration and Border Protection [2016] FCA 108; NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559. At the hearing on 9 March 2017, the applicant was unable to provide any explanation why his medical state precluded him from participating effectively in the hearing. Moreover, it was not clear from the documentation provided that the applicant’s condition would necessarily have changed with the passage of time. Accordingly, I refused the application and proceeded to hear the application for leave to appeal.

15    The applicant’s proposed grounds of appeal are contained in an application for leave to appeal filed in this Court on 10 October 2016, an affidavit of the applicant filed on the same date and written submissions filed on 28 February 2017. The applicant has not filed a draft notice of appeal, as required by r 35.12(2)(d) of the Federal Court Rules 2011 (Cth).

16    The applicant contends that the primary judge erred by not giving any weight to the supporting documents lodged with the applicant’s claim (ground 1) and by denying the applicant procedural fairness (ground 2).

Consideration

17    In order for the applicant to obtain leave to appeal, I must be satisfied that in all the circumstances the decision of the FCCA is attended by sufficient doubt to warrant its reconsideration on appeal and, assuming that the decision is wrong, that substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

18    Ground 1 claims that the primary judge erred by not giving any weight to the supporting documents lodged with the applicant’s claim. The primary judge held that the substance of that ground was “an expression of … disagreement with the Tribunal’s factual findings about his credibility…” (primary judge’s reasons at [31]). The primary judge held that this constituted an impermissible invitation for the Court to review the merits of the Tribunal’s decision (primary judge’s reasons at [31]).

19    The primary judge summarised the eight adverse credibility findings made by the Tribunal (primary judge’s reasons at [15]) and noted that “[the Tribunal] was also concerned that despite being asked a number of times about what his first wife’s family did to him, the applicant failed to mention at the hearing events described in his statutory declaration”. Having summarised the adverse credibility findings, the primary judge stated:

18. The Tribunal found that each of the eight concerns it identified reflected poorly on the applicant’s credibility and the reliability of his evidence or the documents he had provided. Having rejected all of the applicant’s factual claims, the Tribunal did not accept that he faced a real chance of serious harm or that there was a real risk he would suffer significant harm if he returned to Bangladesh.

19. It was open to the Tribunal to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events. Further, its conclusion that the applicant was not a credible witness was a finding of fact par excellence. It was a matter solely for the Tribunal to identify such material as it found relevant to its reasoning and to give that material appropriate weight.

(Citations omitted.)

20    The primary judge’s observation that credibility findings are a matter for the Tribunal par excellence relies on a decision of this Court in Minister for Immigration v MZYNN (2012) 133 ALD 479; [2012] FCA 1177 at [33] and a decision of the High Court in NAIS v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [9]. The relevant paragraphs cited by the primary judge are, however, not authority for the proposition that adverse credibility findings are immune from judicial review. The proposition that credibility is a matter for the Tribunal par excellence derives from McHugh J’s observations in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 where his Honour observed (at [67]):

In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.

(Emphasis added.)

21    In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, the Full Court of this Court said (at [82]-[83]):

[82] The appellants contended that the Tribunal misunderstood the evidence regarding the appellant mother’s dowry in making critical adverse credibility findings. In particular, they submitted that the Tribunal had misapprehended evidence relating to the contents of the nikahnama which provided the basis for the Tribunal’s conclusion that the appellant mother had sought to mislead the Tribunal about the dowry.

[83]     Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]–[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:

(a)     McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

(b)     the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

(c)     in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

(i)    failure to afford procedural fairness;

(ii)    reaching a finding without a logical or probative basis;

(iii)    unreasonableness; and/or

(iv)    other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 ; 233 FCR 451 at [20]–[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]–[42].

22    The evidence before the Tribunal in this case consisted of filed documents, including the statutory declaration, and the applicant’s oral testimony.

23    The Tribunal did not accept the applicant’s evidence about a number of important aspects of his claim – namely, his place of residence prior to leaving Bangladesh (Tribunal’s reasons at [26]-[27]), the nature of his marriage to his first wife (Tribunal’s reasons at [28]-[29]) and his involvement with the BNP (Tribunal’s reasons at [35]-[36], [39]-[40]) – because of a number of inconsistencies in the evidence given by the applicant in relation to those questions.

24    The applicant’s statutory declaration before the Tribunal contained claims that he had been threatened, beaten and extorted by his first wife’s family (and associates of the family). The Tribunal disbelieved those claims, so it seems to me, only on the basis that, when asked by the Tribunal through his interpreter about the events the subject of the statutory declaration, the applicant did not recite all of the claims made in the statutory declaration: see Tribunal’s reasons at [30]-[34].

25    It is, in my view, reasonably arguable that it was illogical or unreasonable for the Tribunal to have rejected the applicant’s evidence about his treatment by his first wife’s family, not on the basis of any inconsistency between his written and oral accounts, but only on the basis that he had failed to recount in oral evidence all of the incidents detailed in his written material.

26    The point is possibly of some importance because, had his written and oral evidence in respect of this aspect of his claim been accepted, it may have been open to the Tribunal to determine that the complementary protection criteria had been met.

27    Accordingly, I will grant the applicant leave to appeal on the question whether the adverse credibility findings made by the Tribunal were affected by jurisdictional error. Although the particulars of the applicant’s proposed ground 1 do not specifically refer to the Tribunal’s adverse credibility findings at [30]-[34], I consider that the proposed ground is broad enough to encompass a grant of leave on the question whether the Tribunal’s adverse credibility findings in this respect were affected by jurisdictional error. In any event, his submissions in respect of ground 2 clearly advert to the issue of credit.

28    As the Full Court observed in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, a deficiency in the Tribunal’s credibility findings could also amount to a denial of procedural fairness. For the reasons given above, I am of the view that leave should also be granted with respect to the applicant’s proposed ground 2.

29    With respect to the second limb of the test for leave to appeal, Mortimer J observed in Kaur v Minister For Immigration and Border Protection (2015) 233 FCR 507 (at [29]-[30]):

[29]     In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious there will be substantial injustice to a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings.

[30]     The question is almost always whether there are arguable grounds of review, and whether it is arguable the decision of the Federal Circuit Court was incorrect.

30    Those observations are apt in the present case and I am satisfied that substantial injustice would result if leave were refused.

Conclusion

31    For the reasons given above, the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal and substantial injustice would result if leave were refused. I am also of the view that, notwithstanding that the applicant did not file a draft notice of appeal with his application, the requirement that the applicant make his application for leave to appeal in the manner and form specified in the rules should be dispensed with pursuant to r 1.34 of the Federal Court Rules 2011 (Cth).

32    The application for leave to appeal is allowed. The costs of the interlocutory application should be costs in the cause on appeal.

Associate:

Dated:    21 March 2017