FEDERAL COURT OF AUSTRALIA

AEX15 v Minister for Immigration and Border Protection [2017] FCA 821

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave to appeal limited to the question of whether the primary judge erred by not finding that the Tribunal erred in its treatment of the applicants’ documentary evidence, being the evidence referred to at [65] and [190] of the Tribunal’s reasons.

2.    The costs of the application be costs in the 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 applicants’ 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 applicants are a family of five; AEX15 (the first applicant) and his wife, AEY15 (the second applicant), and their two children, AEZ15 and AFA15 (the third applicant and the fourth applicant, respectively).

3    The first applicant is a fish farmer who claims to have a well-founded fear of persecution, for the purpose of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), by reason of his political opinion and membership of particular social groups, namely, the family unit of members of the Bangladesh Nationalist Party (BNP), businessmen with BNP affiliations and persons associated with the BNP facing extortion. He claims to be at risk of suffering significant harm, for the purposes of s 36(2)(aa) of the Act, on the basis of same factual substratum. The second to fourth applicants’ claims are made on the basis that they are members of the same family unit as the first applicant.

4    The first applicant claims to have been involved with the BNP as a supporter and member since 1992 and that he is from a BNP family, with a father who has been actively involved in party politics and an uncle who has held several prominent positions of power within the party. The first applicant further claims to have himself been in a position of power within the party, as the Secretary of the Jubo Dal (the youth wing of the BNP) for Jalalabad in 2008.

5    The first applicant claims to have suffered relevant harm prior to leaving Bangladesh on two occasions. On the first occasion, members and supporters of the Awami League (the rival party of the BNP and the ruling party in Bangladesh) forcibly entered the first applicant’s fish farm, assaulted a security guard and killed all of the fish with poison. On the second occasion, the first applicant was physically assaulted on his way to a market, which resulted in him losing consciousness and being hospitalised. Threats were made by his assailants, which adverted to the first applicant’s political activities and indicated that he would be killed if he continued with those activities.

The Tribunal proceeding

6    The Refugee Review Tribunal (the Tribunal), as it was then called, considered whether the first applicant met the criteria in s 36(2)(a) of 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 first applicant being removed from Australia, there was a real risk that he would suffer significant harm.

Evidence in support of applicants’ claims

7    The first applicant gave testimonial evidence at two hearings before the Tribunal. He also provided the Tribunal with post-hearing submissions and various country information (including from the United Nations Human Rights Committee). The Tribunal also had before it certain documents in support of the protection visa application, including a letter from the BNP in Jalalabad, the first applicant’s trade license, character certificates, a tax certificate, marriage certificates and school results. Because it will be necessary to address the Tribunal’s treatment of the applicants’ documentary evidence later in these reasons, it is appropriate to set out the Tribunal’s description of the letter from the BNP in Jalalabad:

65.     The applicant’s letter from the BNP submitted to the Department was obtained by [the first applicant’s] brother who requested it as the applicant did not speak to anyone about it. It refers to the applicant being an executive of No. 1 Jalalabad Union. The applicant at his second hearing explained that there are eight unions in his upazilla [sic]. The letter indicates that Jalalabad Fishery owned by the applicant was positioned [sic]. It claims his family have been threatened. It claims he was in hospital for four days. The letter is replete with grammatical and spelling errors and relates to the applicant being “completely in apprehension of killing. Prior to the primary decision, the applicant had provided a letter from one Mr Choudhury from the Chhatradal. It refers to the applicant being ‘general secretary of Bangladesh Jatiyotabadi Jubadal no. 1 Jalalabad Union Branch, Sylhet, Bangladesh. His conduct and character are good.’ Although relating to his “Jubadal position it is on Chhatradal letterhead. Attached was an affidavit by one Mr Miah, the applicant’s uncle, misspelling ‘Awamileague’ and ‘Isakalash’ and relates to the applicant’s uncle’s positions and defeat after a claimed five terms as Chairman. The letter indicates “Specifically after defeating my Union parishad election in 2011 A.D. the ruling party Awamileague and their terrorists attached Mr. Daud Ahmed and his family.”

66.    The applicant maintained he would be killed if returned to Bangladesh.

67.    The applicant’s representative provided country information at the end of the hearing placed on file and considered by the Tribunal. The Tribunal provided the representative with a copy of the DFAT Country Report of October 2014.

8    It must be assumed that the reference at [65] of the Tribunal’s reasons to the “Jalalabad Fishery owned by the [first] applicant” having been “positioned” should be read as a reference to the first applicant’s claim that his fishery was poisoned. It is unclear whether “positioned” was the term used in the first letter to which the Tribunal referred at [65] of its reasons or whether use of the term is a typographical error appearing for the first time in the Tribunal’s reasons.

9    In any event, later in the Tribunal’s reasons, the Tribunal detailed the substance of the country information, including the Department of Foreign Affairs and Trade (DFAT) “Country Report of October 2014”, with respect to the prevalence of fraudulent documents in Bangladesh: Tribunal’s reasons at [169]-[172]. Nothing further is said about the relevance of that country information. However, presumably, that country information was intended to inform the Tribunal’s finding at [190], where the Tribunal said (errors in original):

The Tribunal does not accept the documents as submitted by the applicant to be genuine or reliable given its finding that he is not affiliated with the BNP. Further, the letters contains irregularities are self-serving, and make reference to the applicant lodging a protection visa application in Australia. They are filled with typographical, spelling and grammatical errors and contain information at odds with the applicant’s evidence in relation to his claimed affiliation with the BNP. It finds that these documents are not genuine or reliable and gives them no weight.

Tribunal’s findings

10    The Tribunal rejected the applicants’ claims under both s 36(2)(a) and s 36(2)(aa) of the Act: see Tribunal’s reasons at [191]-[193] and [194], respectively.

11    Central to the Tribunal’s decision was its rejection of the first applicant’s evidence as to his claimed affiliation with the BNP. Relevantly, the Tribunal held that:

(1)    The first applicant’s knowledge of the BNP was “vague and superficial and lack[ing] supporting detail”. The Tribunal did not accept that he was an officeholder of the BNP, as he had claimed: Tribunal’s reasons at [180].

(2)    The first applicant had neglected to mention that he had been general secretary of the Chattra Dal (the student wing of the BNP) in his protection visa application form. The Tribunal did not accept his explanation for not having done so – that he simply forgot – and found his claim in this respect to lack credibility: Tribunal’s reasons at [181].

(3)    The first applicant claimed to have held executive positions within the student and youth wings of the BNP, despite not having been a student and, in the case of the youth wing, being 30 years of age. The Tribunal rejected the first applicant’s evidence that a person did not need to be a student to be elected to the student wing of the BNP: Tribunal’s reasons at [182].

(4)    The first applicant claimed to have been an executive member of the Jubodal of the Jalalabad Union Parishad; however he was unable to articulate the policies, principles and platforms of the party in respect of the one campaign in which he claimed to have been actively involved. In any event, the Tribunal held that the first applicant’s political profile, even based on the positions he claimed to have held, would have been low: Tribunal’s reasons at [184]-[186].

(5)    The first applicant’s evidence as to his motivation for joining the BNP, becoming an active member and holding executive positions in the party was not credible. Relevantly, the Tribunal characterised the first applicant’s evidence in this respect as “at best superficial”, “devoid of specific detailed policies” and “lack[ing] any supporting detail which an executive member of a political party would be able to relate after years of claimed political involvement”: Tribunal’s reasons at [187].

12    The Tribunal also rejected the first applicant’s claim to have faced serious harm at the hands of the Awami League, its members or Bangladeshi authorities prior to his departure from Bangladesh. The Tribunal held that the first applicant’s account of the most serious harm he faced in Bangladesh was a “virtually verbatim recitation of what was written in his application and contained no supporting corroborative detail”. In any event, having held that the first applicant was not affiliated with the BNP, the Tribunal rejected his claim to have been attacked by Awami League supporters on the basis of the claimed BNP affiliation: Tribunal’s reasons at [189].

13    The Tribunal further held that there were no outstanding charges against the first applicant and that he did not hold interests adverse to those of Bangladeshi authorities: Tribunal’s reasons at [189].

14    As noted above, at [190] of the Tribunal’s reasons, the Tribunal dismissed the applicants’ documentary evidence as not genuine or reliable and gave it “no weight”. The Tribunal then concluded (at [191]):

…the [first] applicant’s credibility is so seriously undermined that there is no credible or trustworthy evidence before [the Tribunal] upon which to make a finding that the [first] applicant is a Convention refugee or that he is a person in respect of whom Australia owes protection obligations.

The FCCA proceeding

15    The applicants sought judicial review of the Tribunal’s decision in the FCCA. The applicants’ grounds of review before the FCCA were contained in a number of documents filed in that Court.

16    By an application for judicial review, as originally filed, the applicants claimed as follows (errors in original):

1.    The Refugee Review Tribunal has failed to provide reasons for its decision pursuant to section 36(2)(aa) of the Migration Act.

Particulars:

In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT explicitly failed to provide separate reasons to its consideration under section 36(2)(a) of the Act.

2.    The RRT has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958

Particulars

In dealing with the Applicant’s claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the Refugee Review Tribunal explicitly failed to disaggregate the statutory formulae under section 36(2)(a) and 36(2)(aa) of the Act.

3.    The Refugee Review Tribunal denied the Applicant’s procedural fairness.

17    By an amended application, the applicants subsequently claimed (errors in original):

1.    The Refugee Review Tribunal made a jurisdictional error when it failed to consider each integer of his claim and or failed to take into account the whole of the oral and written evidence in determining whether he feared persecution claimed amount to persecution and serious harm within the meaning of s 91R of the Migration Act.

Particular: The Tribunal did not account the background of Applicant’s motivation to joint BNP party since 1998 when he became member of the BNP. He told to the Tribunal that his family is strong supporter of BNP. The applicant told to the Tribunal how his father and uncle was involved in politics and supporting the BNP from the origin of the Party. The applicant gave the evidence why he is targated by the Awami League Party supporters. The applicant was one of the main leader who organised protest against the Awami Legaue (AL) government at the behest of [Mr A]. On 8 December 2011 he attended a protest with Mr A who was abducted. The applicant took part in protest to get him released. The applicant was the main person who organised the protests. That was the reason why he was threatened by the Awami League member. The applicant claims that was the Tribunal failed to consider this integer of his claim. The applicant claims the Tribunal failed to account this matter and mistook the facts. The applicant claims that the Tribunal failed to consider more recent information with regards to the attacks on the BNP supporters by the supporters of the Awami League Party. The applicant claims that not considering the recent information about the atrocities committed by the Awami League on the BNP supporters is an error or a path leading to error, error is itself a failure to perform the statutory task imposed on the Tribunal by the Migration Act.

2.    The AAT made a jurisdictional error when it discarded all the oral and written submission without giving any solid evidence of cumulative credibility concern in the finding of reasons.

Particular:

The applicant claims that the Tribunal asked many irrilivant questions to discredit and confuse the applicant. Whatever possible the applicant told to the Tribunal about economic policy of the Present Government. In decision the Tribunal found applicant’s evidence to be vague (GB Page 418 Col 180-181) and superficial and lacking supporting details.

The applicant claims the Tribunal used only Data supplied by DFAT which is not all the evidence for assessing the applicant’s claim for the atrocities committed on the BNP supporters by the Awami League Government machinery.

The Tribunal raised doubts over the credibility which is not true. He was a member of the BNP since 1998 and he worked for the party at all levels.

18    In oral and written submissions, the applicants further claimed, in essence, that:

(1)    the Tribunal did not follow the procedure “required by the [A]ct or regulations”, relying on “Muin” and “Lee’s case”;

(2)    there was “no evidence or other material to justify” the Tribunal’s decision;

(3)    the interpreter at the hearing had made mistakes; and

(4)    the first applicant had only claimed to be an executive member of the Jubodal, whereas the Tribunal recorded the applicant as stating that he had been the general secretary of the Chattra Dal and an executive member of the Jubodal.

(AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [19], [23], [31], [38]-[39].)

19    In summary, dismissing each of the applicants’ claims, the primary judge held that:

(1)    With respect to the first ground in the original application, the Tribunal provided reasons for concluding that the first applicant’s claims did not satisfy s 36(2)(aa) of the Act, noting that the Tribunal’s conclusion was based on its adverse credibility assessment: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [20].

(2)    With respect to the second ground in the original application, the Tribunal identified the correct formulation of s 36(2)(aa) and separately considered the first applicant’s claims against the complementary protection criteria: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [21].

(3)    The third ground in the original application was not particularised and did not disclose an arguable cause of jurisdictional error: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [22].

(4)    With respect to the first ground in the amended application, it was open to the Tribunal to reject the first applicant’s evidence with respect to the reasons he joined the BNP and the threats he faced by Awami League supporters. Further, the applicants’ claim that the Tribunal did not consider more recent information about the attacks on BNP supporters was not arguable because it was unparticularised and because the Tribunal did not accept that the first applicant was affiliated with the BNP at all: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [24]-[25].

(5)    With respect to the second ground in the amended application, it was open to the Tribunal to conclude that the first applicant’s claims were not credible, no error was revealed by the Tribunal’s reference to country information and the ground was otherwise directed to the merits of the Tribunal’s decision: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [27]-[28].

(6)    With respect to the claims stated at [18(1)] and [18(2)] above, the claims were not arguable, as the applicants had failed to identify relevant documents and evidence that were required to have been considered, and the Tribunal otherwise considered the applicants’ claims and evidence in a manner that was open to it: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [31]-[37].

(7)    With respect to the claim that the interpreter had made mistakes in the hearing before the Tribunal, the first applicant had acknowledged that these mistakes had been corrected during the hearing: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [38].

(8)    The first applicant’s assertion that he had only claimed to be an executive member of the Jubodal was unsupported by evidence, as the applicant had failed to file such evidence (for example, the transcript of the hearing), despite having been given an opportunity to do so: AEX15 v Minister for Immigration and Border Protection [2016] FCCA 3022 at [38]-[41].

The application to this Court

20    In this Court, the applicants’ proposed grounds of appeal are contained in the following documents: an application for leave to appeal filed on 1 December 2016; an affidavit in support of the application, also filed on 1 December 2016; a draft notice of appeal dated 29 November 2016; and written submissions filed by the applicants on 27 April 2017.

21    The application for leave to appeal states four grounds (errors in original):

1.    Hon. Judge Manousaridis of the Federal Circuit Court failed to hold that the Tribunal committed a jurisdictional error when it failed to apply the correct test of persecution in relation to the Complementary Protection Visa Provision contained in section 36(2) (aa) of the Migration Act 1958. The AAT failed to separate the claim to be refugee and fear of harm test for the provision of the Complementary Protection.

2.    Hon. 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 the independent country information like Amnesty international report regarding Bangladesh. The decision on based on DFAT information only. The Tribunal failed to understand the political activist situation for BNP activists and the tribunal member opinion concluded that I will not suffer from any harm if I return to Bangladesh which is not feasible.

3.    I was denied procedural fairness when the Tribunal made opinion based on assumption and possibilities. The Tribunal failed to assess the current situation in Bangladesh where thousands of Bangladesh Nationalist Party workers are arrested recently and harassed by the Awami League Government Authority. In assessing danger to me. The Tribunal undermined the danger I will face if I am compelled to return Bangladesh as a returned Asylum seeker.

4.    The Administrative Appeals Tribunal denied the procedural fairness.

22    The affidavit filed in support of the application for leave to appeal further claims that the primary judge erred by dismissing the applicants’ application for judicial review “without giving any reasonable grounds” and failed to take into account all relevant grounds when making its decision. The affidavit otherwise seeks reconsideration of the applicants’ claims against the refugee and complementary protection criteria (which is not the role of the Court in an application such as this).

23    The draft notice of appeal contains four further grounds (errors in original):

1.    The judge of the Federal Circuit Court in his honourable judgment delivered on the 24 November 2016 failed error of law and relief under the judiciary Act. He failed to find that the Administrative Appeals Tribunal (AAT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.

2.    The Administrative Appeals tribunal’s decision was affected by the recent High Court reported decision.

3.    The Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving its decision in deciding my Protection visa 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.

4.    The Administrative Appeals Tribunal has failed to provide reasons for its decision pursuant to Section 36(2) of the Migration Act.

24    The written submissions (WS) filed by the applicants on 27 April 2017 contain several claims under the heading “GROUNDS OF APPEAL”. Those claims are as follows (errors in original):

1.    The AAT unreasonable raised doubt over my political activities and membership of BNP. My claims to fear serious harm in Bangladesh on the Conventional grounds of my actual or imputed political opinion in favour of the Bangladesh Nationalist Party and against the Bangladesh Awami League which is in power.

2.    The Tribunal doubts about my membership of BNP party was based on unreasonable assumption. The issue of credibility.

In the interview with the Tribunal, I was asked several questions over my affiliation and membership of the BNP party.

I told the Tribunal in oral and written evidence that I was persecuted because of my political opinion with BNP, before I left Bangladesh in 2013. I was holding a very important position of General Secretary in his local are of Jalalabad.

The Tribunal wanted to know the history of my affiliation with the BNP party. As a truthful witness I explained everything about my involvement by giving oral and written evidence.

3.    I categorically and truthfully said to the Tribunal that in the early stage I was simply a member but after some stage I did sincere efforts to build up the organisation of BNP in my area.

I became target of opposition Awami League Party because of my loyalty and sincerity to BNP and sincere services to the local community.

That was one integer how I became popular. This is very common in the politics of South East Asian countries such as India Bangladesh and Pakistan. The Tribunal raised several irrelevant issues to discredit the facts that I was an active member of the BNP party. My claims that the Tribunal either mistook the facts or misunderstood the facts related with my involvement with the BNP and service to the local people.

4.    When I was asked whether I was involved in protests I said that I have had attended numerous political meetings organised by the BNP party members and supporters. Tribunal discarded all the oral and written evidence without giving any sound reasons for that.

I categorically said that I was involve in BNP politics.

5.    My claims that the Tribunal made a jurisdictional error when intentionally asked several irrelevant questions to undermine my political activities and my role within the BNP.

6.    In the submission to the Tribunal I submitted that my fears persecution, because of having the membership of a particular social group, I can be considered a member of a particular social group, namely a member of the BNP.

My claims I was denied procedural fairness and natural justice when my submission was out right discarded or rejected. Inconsistency is very common during hearings but the role of authority is vital to understand the issues. It can be done only open mind. My claims that the Delegate and the Tribunal made decision with closed mind.

7.    All the members of BNP are easily identified by a characteristic or attribute that is common to all members, the being my political affiliation with the party. This characteristic leads to members being distinguished from, the community at large. Accordingly, the BNP can be regarded as being a social group and I am a member of that Party. I never claimed that I was a very big leader of the BNP and having very high political profile. I was a truthful witness and whatever I said to the Tribunal was correct.

8.    My claims that the test of fear of persecution applies whether the victim has a low profile or high profile. It is facts that high-profile leaders are targeted easily but it does not mean that low profile political activists are not killed in any attacks. In reality the low profile political activists are killed first before the big political leaders in the name of security.

9.    My claims that information collected by the Delegate is biased and limited. My claims that the Delegate and the Tribunal made decision on the Limited information not the whole information’s available on the media.

The Tribunal ignored all other independent information and came on the conclusion. The AAT made unreasonable doubt about my documents related with my Claims.

10.    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.

11.    I had a legitimate expectation from the Tribunal that it would assess the my claims according to required procedural fairness.

12.    I left Bangladesh because of fear from the Government Authority governed by the Awami League party (AL). I believe that there is a real risk, I will suffer significant harm on return to Bangladesh.

13.    The harm or the mistreatment feared by me on return is for reason of one or more of five grounds of recognized in the Refugee Convention.

14.    I claim that my fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.

15.    My fear of harm is well-founded and that there is a real chance that I will suffer persecution if I returned to Bangladesh.

...

25    For the applicants’ benefit, those claims that are framed as a challenge to the Tribunal’s decision have been understood by the Court as seeking to challenge the primary judge’s failure to identify or accept the relevant errors.

Consideration

26    In order for the applicants 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.

Application for leave to appeal grounds

The test for s 36(2)(a) and/or (aa)

27    The applicants’ claim that the Tribunal applied the incorrect test for, and failed to separate, their refugee and complementary protection claims is misconceived. The Tribunal correctly identified the tests for s 36(2)(a) and s 36(2)(aa) and separately applied each test: Tribunal’s reasons at [192]-[193] and [194], respectively. No error arises from the same factual findings (namely, the Tribunal’s assessment of the first applicant’s credit) forming the basis of each assessment.

Reliance on DFAT country information

28    The applicants take issue with the Tribunal’s reliance on DFAT country information and its failure to have regard to other country information, such as the “Amnesty international report regarding Bangladesh”.

29    The Tribunal’s reasons contain a detailed survey of country information relating to the political situation, including the treatment of BNP supporters, in Bangladesh. The survey is 105 paragraphs long and devotes careful consideration to various media reports, reports of international and domestic non-government organisations, reports of government bodies and academic articles. The Tribunal’s reasons also indicate that the applicants’ representative provided the Tribunal will various pieces of country information, including “from the UNHRC and other sources”, and that the Tribunal considered all of that information: Tribunal’s reasons at [67].

30    Although the Tribunal’s reasons do not expressly refer to the “Amnesty international report regarding Bangladesh”, it is clear that the Tribunal considered a broad range of country information, including that provided by the applicants’ representative. The choice and the assessment of the accuracy and weight of country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]-[11]. Moreover, except in respect of the applicants’ documentary evidence (considered further below), the country information considered by the Tribunal in this matter ultimately did not bear on the Tribunal’s decision because, as the primary judge observed at [28], the Tribunal did not accept that the first applicant was affiliated with the BNP or that he had suffered harm at the hands of the Awami League. The proposed ground of appeal is unsustainable.

Procedural fairness

31    The applicants claim that they were denied procedural fairness when the Tribunal “made opinion based on assumption and possibilities”, “failed to assess the current situation in Bangladesh” and “undermined the danger [the first applicant] will face if … compelled to return Bangladesh as a returned Asylum seeker”. The applicants’ procedural fairness claims are not particularised and, subject to what is said at [42]-[58] below with respect to the Tribunal’s treatment of the applicants’ documentary evidence, the claims cannot succeed.

32    The applicants were invited to attend two hearings before the Tribunal, which they did, and to give evidence and make submissions, which on both occasions they did with the assistance of a representative and an interpreter. They also took advantage of the opportunity to file written submissions and further material following the hearing. At both hearings, the Tribunal put to the first applicant various matters required to be put to him by s 424AA of the Act and considered his responses to those matters: see Tribunal’s reasons at [30]-[66] and [175]-[187]. There is nothing before this Court to suggest that the Tribunal erred by making factual findings not open to it or by failing properly to consider the applicants’ claims. For the reasons given by the primary judge at [32]-[37], no procedural irregularity is revealed by the Tribunal’s reasons.

33    To the extent that the applicants claim to fear returning to Bangladesh as asylum seekers (which, the Court understands, is a claim to fear returning as failed asylum seekers), the claim does not appear to have been raised before the Tribunal or the primary judge. Without particulars or any material before this Court to support the submission, the proposed ground of appeal is not sustainable.

Affidavit ground

34    The affidavit filed by the applicants claims that the primary judge erred by dismissing the application for judicial review “without giving any reasonable grounds” and by failing to take into account all relevant grounds. The claim is not particularised and does not identify the grounds that were required to be considered and which were not. The only record before this Court of the grounds that were put to the primary judge is the primary judge’s reasons for decision. On the face of those reasons, and in the absence of any other supporting material, I am satisfied that the primary judge considered all of the applicants’ claims and that the primary judge’s reasons are sufficiently clear and comprehensive (again, subject to what is said at [42]-[58] below).

Draft notice of appeal grounds

35    Ground 1 in the draft notice of appeal is a “no evidence” claim. This ground could only succeed if the applicants established that there was no evidence at all to support the Tribunal’s findings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Even a “slight” evidentiary basis will defeat a “no evidence” challenge: see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]–[12]; and SZNKV v Minister for Immigration and Citizenship [2010] FCA 56; 118 ALD 232. However, finding a claim to be not made out for want of evidence is not the same as making a finding premised on no evidence. The Tribunal’s decision turned on its rejection of the first applicant’s evidence, on the basis of its adverse credibility findings. As discussed further below, those findings were open to it. Further, the Tribunal is not required to possess rebutting evidence before holding that a particular factual assertion cannot be made out: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]; citing Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; 34 ALD 347.

36    Ground 2 in the draft notice of appeal is not particularised and is meaningless without the applicants identifying the “recent High Court reported decision” which they claim affects the Tribunal’s decision.

37    Ground 3 in the draft notice of appeal claims that the Tribunal did not follow the “proper procedure… required by the Act or… regulations” in reaching its decision. This claim is not particularised and adds nothing to the applicants’ other claims concerning procedural fairness (addressed above at [31]-[33]).

38    Ground 4 in the draft notice of appeal is unsustainable. Clearly, the Tribunal has provided reasons for its decision under s 36(2). Those reasons run to 197 paragraphs.

Written submission grounds

39    Most of the claims made in the applicants’ written submissions are unparticularised or are particularised to an insufficient degree. Some repeat claims made elsewhere (e.g. WS grounds 10, 11) and some go impermissibly to the merits of the Tribunal’s decision (WS grounds 8, 12, 13, 14, 15). Those that advert to error of a kind that is within the purview of this Court’s role on review of the primary judge’s decision, and which are not otherwise raised by the applicants, are:

(1)    that the Tribunal’s adverse credibility findings were “unreasonable” or otherwise not open to it (WS grounds 1, 2, 3, 4, 7);

(2)    that the Tribunal asked “several irrelevant questions” (WS ground 5);

(3)    that the Tribunal made its decision with a “closed mind” (WS ground 6); and

(4)    that the delegate and the Tribunal made their decisions based on limited or incomplete information (WS ground 9).

40    With respect to the applicants’ claim that the Tribunal’s adverse credibility findings were not open to it, the claim appears to relate only to the Tribunal’s rejection of the first applicant’s evidence concerning his involvement with the BNP. Adverse credibility findings may be subject to challenge on various recognised grounds: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [38] and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [82]-[83]. However, the particulars supporting the applicants’ claim in this respect do no more than take issue with the merits of the Tribunal’s decision. The Tribunal’s findings on the credibility of the first applicant’s evidence with respect to his involvement in the BNP were arrived at after the first applicant was given the opportunity to respond to the Tribunal’s concerns regarding that evidence. The Tribunal provided detailed reasons for the findings (summarised at [11] above), which do not reveal any defect in the Tribunal’s credibility assessment of the kind that would be appellable to this Court. The relevant adverse credibility findings do not appear to be illogical, irrational or unreasonable, nor do they appear to have been arrived at in a manner that denied the first applicant procedural fairness. The claim is thus unsustainable.

41    WS grounds 5 and 6 are, as I understand them, both species of a procedural fairness claim. For the reasons given above, the applicants’ claim that the Tribunal asked several irrelevant questions to, in essence, undermine the first applicant’s credibility, is without merit. The Tribunal’s questioning of the first applicant on the issue of his BNP involvement was in furtherance of the Tribunal’s duty under s 424AA of the Act and the Tribunal’s reasons provide no basis for the claim that its questioning in this respect was unreasonable or directed to irrelevant matters. There is no other material before this Court that supports the claim. Similarly, a claim of bias, as WS ground 6 appears to be, is a serious allegation that must be made good by way of evidence. There is nothing to support such a claim in the material before this Court.

42    To the extent that WS ground 9 seeks to challenge the delegate’s decision, that challenge is not subject to review in this Court in an application such as this. To the extent that WS ground 9 claims that the Tribunal made its decision based on limited or incomplete information, ignored “all other independent information” and “made unreasonable doubt about [the first applicant’s] documents” (sic), the ground could, however, be understood as claiming that the Tribunal impermissibly disregarded the applicants’ documentary evidence.

43    It is here that, in my view, a point requiring the grant of leave arises.

44    The Tribunal found the relevant documents to not be genuine or reliable only on the basis of its earlier rejection of the first applicant’s claimed political affiliation (detailed at [11] above). The Tribunal further noted that the “letters contains [sic] irregularities are self-serving, and make reference to the applicant lodging a protection visa application in Australia. They are filled with typographical, spelling and grammatical errors…”. The Tribunal continued, “[the documents] contain information at odds with the applicant’s evidence in relation to his claimed affiliation with the BNP”. The Tribunal’s reasons do not explain how the information contained in the first applicant’s documentary evidence is at odds with his other, presumably testimonial, evidence. On the basis of these observations, the Tribunal held “these documents are not genuine or reliable and [the Tribunal] gives them no weight”: Tribunal’s reasons at [190].

45    The question of whether it is open to the Tribunal to give no weight to documentary evidence on the basis of an ancillary adverse credibility finding, as the Tribunal appears to have done here, was considered by the Full Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (WAIJ).

46    In that case, Lee and Moore JJ relevantly observed (at [26] and [27]):

The tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.

Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see [Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59] at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]–[85] per McHugh, Gummow and Hayne JJ.

47    Finding that the Tribunal had denied the appellant procedural fairness, Lee and Moore JJ stated (at [52]; R D Nicholas J dissenting at [55]-[72]):

The tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.

48    Similarly, in Minister for Immigration and Citizenship v SZNPG [2008] FCA 1638; 105 ALD 25 (SZNPG), Finkelstein J considered the exception articulated by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 (S20/2002) and referred to by Lee and Moore JJ in WAIJ (at [27]). Finkelstein J relevantly observed (at [23]):

That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

49    Referring to WAIJ (at [23]), his Honour held (at [26]-[27]):

I am in no doubt that, contrary to the views of the Magistrate, the tribunal should have had regard to the documents put forward by the appellant in order to assess her credibility. In its reasons the tribunal explained how it would have regard to the documents. It said:

The applicant has claimed in her most recent submission that:

The documentary evidences [sic] that I have previously submitted is true and important evidence in support of my claims.

The Tribunal is not convinced that this statement is true as it finds that it does not accept her claims and it does not accept, therefore, that her documentary evidence is authentic.

This is not a rational approach. Putting to one side the fact that the tribunal misunderstood the appellant’s claim, it is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant’s credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant’s evidence fell into the S20/2002 category. It plainly did not fall into that category.

50    In Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP), the Full Court considered S20/2002, WAIJ and SZNPG in the context of the Refugee Review Tribunal’s refusal to give weight to a purportedly corroborating witness statement from a person not called to give evidence before that tribunal, following a finding that the visa applicant had fabricated her claims. Relevantly, North and Lander JJ held (Katzmann J agreeing) that:

(1)    It is not a precondition to the exception identified by McHugh and Gummow JJ in S20/2002 that a person tendering corroborative material be found to have lied: SZNSP at [30]. Even if such a finding is a precondition, a finding that the visa applicant had fabricated her claims was tantamount to a finding that she had lied: SZNSP at [32].

(2)    It was open to the Refugee Review Tribunal to assess the credit of the visa applicant and then, in light of that assessment, consider what weight should be given to the witness statement. Their Honours observed that, although expressed in the most “cryptic” terms (the Refugee Review Tribunal noting only “[g]iven the adverse credibility finding, the Tribunal does not give weight to the document”), the Refugee Review Tribunal assessed the value of the witness statement and considered its effect in light of the view it had formed to that point of the visa applicant’s evidence: SZNSP at [33].

(3)    It was open to the Refugee Review Tribunal to conclude that, in view of all of the evidence, no reliance was to be placed on the witness statement, because “it was not corroborative evidence at all” in the absence of proof of the provenance of the document and the reliability of the author: SZNSP at [35]; see also SZTQZ v Minister for Immigration and Border Protection [2017] FCA 282 at [26] per Jessup J.

(4)    Where a decision-maker, having conducted a hearing during which the applicant has been heard, reaches a tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled to reject evidence which would have, if accepted, corroborated the applicant’s account. Whether the evidence can be rejected depends on the nature, content and quality of the corroborative evidence: SZNSP at [36].

51    With respect to the order in which such factual findings should be made, their Honours concluded (at [37]-[39]):

[S20/2002] … does not relieve the [Refugee Review Tribunal] from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the [Refugee Review Tribunal] does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

The [Refugee Review Tribunal] would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence.

[S20/2002] does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence …

On the other hand, it should be remembered that McHugh and Gummow JJ [in S20/2002] questioned whether the separate consideration of corroborative evidence was a preferable practice. The [Refugee Review Tribunal] should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the [Refugee Review Tribunal] has not paid sufficient regard to it.

52    In Plaintiff S244/2012 v Minister for Immigration and Border Protection [2016] FCA 1227 (S244/2012), Robertson J considered whether the Tribunal had erred in discounting the truth of a statutory declaration, having earlier rejected the basis of the claim to which the document related. Finding that the Tribunal had not erred, Robertson J observed “the Tribunal should not be taken not to have considered the [statutory declaration] … until it had reached [39] of its reasons. So to construe the reasons would be to fall into the error of assuming that, because the reasons are expressed sequentially, no consideration has been given by a decision-maker to particular material until the point in the reasons where that material is mentioned”: S244/2012 at [55]; citing S20/2002 at [14] per Gleeson CJ; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]; and Nweke v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 79; 136 ALD 235 at [23].

53    Citing SZNSP at [36] and McHugh J and Gummow JJ in S20/2002 at [49], Robertson J relevantly held (at [64]):

In my opinion, it could not be concluded that the present Tribunal rejected the corroborative material out of hand. It is true to say that the Tribunal did not, so far as disclosed by its reasons, analyse the contents of the Statutory Declaration line by line. It is also true to say that another decision-maker might have formed a different view about the appellants’ claims and the cogency of the Statutory Declaration. However, neither of those matters establishes jurisdictional error. In the present case the Tribunal had not accepted the claimed basis for the claimed events of 5 July 2008, the interest of the military in Mr N, and it followed, on that approach, that there was no need for a line by line analysis of the contents of the Statutory Declaration.

54    Finally, Burley J recently considered these cases in SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 (SZVHO). SZVHO also concerned corroborative evidence the sole source of which was the appellant who the Tribunal considered to have fabricated his claims. Applying S20/2002 and SZNSP, Burley J held that the Tribunal had not failed to consider or have regard to the allegedly corroborative material.

55    Burley J relevantly stated (at [40]):

In the present case, the Tribunal took a more nuanced approach than the Tribunal did in SZNSP. It not only read and summarised the corroborative evidence relied upon by the appellant…but also made specific findings regarding aspects of it…On this basis, the conclusion expressed by the Tribunal…that it did not accept that the documents that the appellant had provided were genuine and/or that they contained truthful information, conformed with the requirements set out in SZNSP. Indeed, the Tribunal emphasised that it had discussed with the appellant during the hearing that fraudulent document is readily available in and easy to obtain in Pakistan. The Tribunal there was, in effect, taking the matter further by pointing out that not only did it not believe the appellant’s own version but that it considered that the untruthfulness of the appellant equally tainted the reliability of the purportedly corroborative material. That was a step further than the Tribunal in SZNSP.

56    His Honour considered that the Tribunal’s findings in that case brought it within the exception referred to by Lee and Moore JJ in WAIJ at [27] (that is, that identified by McHugh and Gummow JJ in S20/2002 at [49]) and that Robertson J’s conclusion at [64] of S244/2012 (set out at [53] above) was entirely consistent with the relevant authorities: SZVHO at [41]-[43].

57    While “cryptic” reasons will not be enough to establish error where the Tribunal has assessed the value of allegedly corroborative evidence and considered its effect in light of its view as to the applicant’s credibility (as North and Lander JJ observed in SZNSP at [33]), and care must be taken to avoid subjecting a tribunal’s reasons to over-zealous scrutiny, the Tribunal’s reasons on the documentary evidence in this case are scant, to say the least. In the circumstances, there is, in my view, sufficient doubt surrounding the Tribunal’s treatment of the documentary evidence in this case to warrant a limited grant of leave. The proposed ground could conceivably be framed as a procedural fairness claim or as a claim that the Tribunal’s rejection of the applicant’s documentary evidence was illogical, irrational or unreasonable: cf SZTQZ v Minister for Immigration and Border Protection [2017] FCA 282 at [25]-[47] per Jessup J.

58    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]):

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.

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.

59    I agree, and I am satisfied that substantial injustice would result if leave were refused.

Conclusion

60    For the reasons given above, the applicants will be granted leave to appeal limited to the question of whether the primary judge erred by not finding that the Tribunal erred in its treatment of the applicants’ documentary evidence, being the evidence referred to at [65] and [190] of the Tribunal’s reasons. The costs of the application will be costs in the appeal.

Associate:

Dated:    25 July 2017