FEDERAL COURT OF AUSTRALIA

DVY16 v Minister for Immigration and Border Protection [2017] FCA 1503

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GILMOUR J:

Factual and procedural background

1    The appellant appeals orders made by the Federal Circuit Court on 18 May 2017 dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant him a protection visa: DVY16 v Minister for Immigration and Border Protection [2017] FCCA 874 (Judgment).

Background

2    The following background, which is not controversial, is drawn substantially from written submissions of the first respondent, the Minister for Immigration and Border Protection (Minister).

3    The appellant, a citizen of Bangladesh, arrived in Australia in April 2015 with a valid tourist visa but a false passport. He was immediately taken into immigration detention following cancellation of his tourist visa.

4    Before the Tribunal the appellant had claimed to have campaigned for the Bangladeshi Nationalist Party (BNP) which resulted in supporters of the opposing Awami League bringing false charges against him as a result of which he had been detained and assaulted by police as well as Awami League supporters after his release.

5    His claims were rejected by the Tribunal in light of inconsistencies between his several accounts as well as evidence he gave which was lacking in detail, logic and plausibility. His credibility was laced in doubt. Thus the Tribunal did not accept that he had faced harm in the past as a BNP supporter nor that he had a well-founded fear of persecution if he returned to Bangladesh either for his support of BNP or as a returned asylum seeker.

6    It is instructive to set out parts of the Tribunal’s reasons for decision, subject to redactions to protect the appellant’s anonymity:

IDENTITY

91WA – Providing bogus documents or destroying identity documents

8.    The applicant arrived in Australia on Bangladesh passport, E1256077 in the name of [REDACTED], date of birth: [REDACTED]. Upon arrival, this document was forensically examined by the department and was assessed to be a bogus document – specifically pages 11, 12, 13 and 14 were found to be substituted.

9.    In an interview conducted with departmental officers at Sydney airport on 21 April 2015, the applicant stated the passport he arrived on was genuine evidence of his identity. He stated ‘the document contains actual bio-date details, however, it was issued by an illegal agent approximately five to six years ago’.

10.    During the same interview, the applicant provided a second Bangladesh passport, P0854515 (valid from 13/11/2000 to 19/04/2011) in the name of [REDACTED], date of birth: [REDACTED]. He claimed that this document was his genuine expired passport. Departmental records indicate that the biographic pages (2-3) of this passport are heavily damaged by water, causing the laminate to separate. It was also noted that the pages before and after pages 2 and 3 of this passport weren’t damaged, calling into question the genuineness of this document.

11.    In a letter dated 16 July 2015, after the lodgement of his TPV applicant, the applicant was advised by the Department that if he provides a bogus document as evidence of his identity, nationality or citizenship; or if the Minister is satisfied he has destroyed or disposed of documentary evidence of his identity, nationality or citizenship, or he has caused such documentary evidence to be destroyed or disposed of; and the Minister is not satisfied that he has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence then under section 91WA of the Act the Minister must refuse to grant him a protection visa.

12.    At the Protection visa interview conducted on 1 June 2016, when questioned about the bogus document he arrived on in Australia, the applicant stated he had used the passport E1256077, in the name of [REDACTED] to depart Bangladesh in April 2015, as he has a police record and Court case against him in Bangladesh since November 2013. He stated that he feared being arrested and detained in Bangladesh and that this had prompted him to purchase a fraudulent passport from an agent for the price of 3000 Bangladeshi takas approximately two to three months prior to his departure from the country. The applicant further stated the agent had lodged his application for a Visitor visa at the Australian Consulate in Dhaka and that the documents submitted with that application were also organised by the agent.

13.    When questioned why he had provided his identity as [REDACTED] on arrival in Australia, the applicant stated he was ‘scared of the police and immigration’. When questioned as to how he was in possession of not one, but two passports (E1256077 and P0854515) on arrival in Australia in the name of [REDACTED], the applicant stated that the agent had given him both ‘the new and the expired passport’.

14.    The applicant has provided the following personal identifiers to the department:

•    Digital fingerprints,

•    Digital photograph,

•    Signature.

15.    The applicant’s fingerprints were checked by the Identity Resolution Centre, showing a match against previous visa applications or entry into the United States of America. Information received from United States (US) Department of State on 14 September 2015, indicates that the applicant lodged applications for a ‘Visitor for Business and Pleasure’ visa to the US on four occasions, namely 11 August 2020, 31 October 2011, 19 September 2012 and 20 January 2015 and he was fingerprinted at the time of lodgement of these applications. On all four occasions, the applicant provided his identity as [REDACTED], date of birth [REDACTED], and his passport details as: number E1256077, country of issue – Bangladesh, issuance date 08/07/2010 and expiration date 08/07/2015.

16.    At the Protection visa interview, it was put to the applicant that on the evidence before the department, it is evident that he had been using the identity of [REDACTED], date of birth [REDACTED] since at least 11 August 2010. It was further put to him that this evidence is contrary to his claim that he had purchased the passports in the identity of [REDACTED] two to three months prior to his departure from Bangladesh in April 2015, and this was on account of the troubles he had encountered in Bangladesh since November 2013. The applicant was given an opportunity to provide a reasonable explanation for providing the department with bogus identity documents and identity. He was advised that failure to provide a reasonable explanation for producing a bogus document means that the Minister for his/her delegate must refuse to grant him a Protection visa.

17.    In response, the applicant asserted that he had used the bogus identity documents to depart Bangladesh as he feared being arrested and harmed by the authorities and supporters of the Awami League in the country. He stated that he had maintained this false identity on arrival in Australia as he was scared his persecutors would learn of his whereabouts.

18.    I am not satisfied the applicant has provided a reasonable explanation for providing the Department with a bogus identity document and identity. His primary argument for maintaining a bogus identity and therefore providing the department with bogus identity documents is that he feared that the authorities and supporters of the Awami League in Bangladesh would learn of his whereabouts if he used his real name and date of birth. However, for reasons outlined in the Findings of Fact section below, I am not satisfied the applicant was or remains wanted by the authorities, supporters of the Awami League or any other actor in Bangladesh. This assessment is reinforced by the fact that the evidence before the Department indicates that the applicant has used the identity of [REDACTED] prior to the time his troubles allegedly commenced in Bangladesh, namely November 2013 and that he had used it for the purpose of travelling to another country.

19.    As I am not satisfied that the applicant is wanted by the authorities, the Awami league or any other actor in Bangladesh, I find that the applicant produced two bogus passports and a false identity to the Department primarily for the purpose of deceiving Australian authorities.

20.    I am not satisfied the applicant has a reasonable explanation for producing the bogus documents and identity to the Department and therefore I find that he does not satisfy section 91WA(2)(a). Therefore, I must refuse to grant the applicant a Protection visa.

21.    I will, however, make findings on the applicant’s now claimed identity and protection claims on the information (discussed below) that is available to me.

…

FINDINGS OF FACT

Protection visa interview

52.    The Protection visa interview was conducted with the assistance of an accredited Bengali language interpreter. Due to logistical constraints, the interpreter attended the interview via telephone. The telephone connection was not completely clear at the Yongah Hill detention centre (where the interview was held) and as a consequence, the interpreter was asked to reconfirm, through the course of the interview, what was being stated by me (the officer conducting the interview) and the applicant, before he could interpret what was stated.

53.    To avoid any miscommunication, through the course of the interview, the applicant’s statements were repeated back to him through he interpreter, to confirm and ascertain what was being interpreted for him was an accurate reflection of what he had actually stated.

54.    The applicant’s migration agent raised as a concern the clarity of the telephone connection and I accept that as a consequence of the poor telephone connection, there was a lot of repetitious conversation carried out throughout the course of the interview.

55.    However, despite the limitations of the telephone connection, the interpreter was able to successfully interpret what was being stated in the Bengali and English languages and the applicant confirmed at various stages during the course and at the end of the interview that he was able to understand the interpreter clearly. The applicant also confirmed that he was able and had put forward all his claims for protection.

56.    I am satisfied the applicant had adequate opportunity over the course of the interview to present all his claims in full and do not consider that he was prevented from presenting his claims by any telephone line clarity issues.

57.    Inconsistencies and adverse information in relation to his claims were put to the applicant during the course of the interview and he was given an opportunity to comment at interview. The applicant requested additional time to provide comment on the adverse information put to him and he was given two weeks from the date of the interview to respond. To date, no response has been received from the applicant in this regard.

….

Summary of findings

81.    I have considered the applicant’s cumulative testimony and with all the available evidence before me, I do not accept that the applicant has been truthful about his reasons for applying for a Protection visa.

82.    His account of alleged involvement in activities for the BNP and campaigning for the party was lacking in detail, and similarly, the circumstances of his alleged arrest and Court case is problematic. The applicant provided a set of scenarios and circumstances, all lacking in detail, logic and plausibility. I therefore do not accept as credible the applicant was ever a person of adverse interest to the authorities or supporters of the Awami League or any other actor in Dhaka or that he fears being harmed by them.

83.    The evidence before the department that the applicant had been applying for visas to the US in the false identity of [REDACTED] since 2010 fatally undermines his claims. This is because the applicant repeatedly claimed at the Protection visa interview that it was only after November 2013 that his troubles in Bangladesh commenced. His lack of explanation for applying for visas to travel to the US since 2010 on a false identity raises further credibility concerns.

84.    Additionally, the applicant’s provision of a false identity and false documentation to the department not only critically weaken his credibility, they undermine my capacity to give the applicant the benefit of the doubt on any of his claims, least of all those claims that are inconsistent and illogical.

85.    For the reasons outlined above I am satisfied that the applicant fabricated his material claims where he believed it would enhance his prospects of being determined to invoke protection obligations in Australia. I therefore dismiss the applicant’s material claims as not credible and reject the applicant’s material claims in their entirety.

Federal Circuit Court proceedings

7    One of the appellant's grounds in the Court below was:

Importance not given to available documentary evidence making the decision unfair to the applicant based on bureaucratic guidelines than truth.

8    The Primary Judge approached this ground in two ways in the Judgment.

9    First, his Honour said at [24]:

To the extent that Ground 2 asserts that the Tribunal placed insufficient weight on the applicant's documentary evidence and too much weight on "guidelines" the ground cannot succeed.

His Honour then sets out reasons for this conclusion at [24]-[28].

10    Second, the Primary Judge considered that the second ground may also be read as an assertion that the Tribunal overlooked relevant material: Judgment at [29]. That material was the bundle of documents that the appellant sought to introduce into evidence. Some of those documents already appeared in the Court Book. Those that did not were numerous, related to the appellant's claim that false charges were made against him in Bangladesh and all appeared to pre-date the Tribunal's decision. The appellant told his Honour that he provided these documents to the Department of Immigration and Border Protection (Department) following his visa interview at the beginning of June 2016: Judgment at [29].

11    At the hearing on 23 March 2017 the Primary Judge gave the appellant an opportunity to provide evidence of delivery of the documents to the Department: Judgment at [30]. On 6 April 2017 the appellant filed an affidavit annexing submissions, a consignment note and a CD recording of his visa interview. On 20 April 2017 the Minister filed an affidavit annexing a transcript of the part of the recording identified by the appellant in his submissions and responsive submissions.

12    In relation to the consignment note, the Primary Judge said at [32]:

Even if it is accepted that the note relates to the documents attached to his affidavit sworn on 7 February 2017, the note does not, of itself, provide evidence of him having provided any documents to the Minister's Department.

13    In relation to the parts of the CD recording identified by the appellant in his submissions the Primary Judge said at [36]:

This segment of interview does not establish that the applicant had any relevant documents in his possession during the interview (let alone those attached to his affidavit of 7 February 2017) or that he attempted to provide documents to the delegate. Accordingly, the segment of interview does not establish that the delegate rejected any documents.

14    The Primary Judge also observed at [40] that even if the appellant could establish that he provided the documents to the Department there was no evidence that they were provided by the Department to the Tribunal so that they were before the Tribunal.

Appeal to this Court

15    The two grounds of appeal are as follows, with some minimal editing:

(1)    The appellant produced an Audio CD of the Department interview in full as evidence to substantiate his claims. The Judge relied on parts of the translation provided by the Minister’s lawyers which only covered the interviewer's words and left out the appellant's answers creating a totally opposite of the actual conversation. Annexing the CD was never intended to be an invitation for the Court to intervene but was only evidence to be reviewed as a whole using the Court’s resources and considering the appellant’s circumstances.

(2)    The assertion by the Department and attested to by the Tribunal, that the appellant is a low level activist. Hence that there is no danger of being harmed is a wrong conclusion drawn out of the report prepared by the Department of Foreign Affairs and Trade for Bangladesh. The reality is that of all the political activists killed, only a fraction were high profile and the rest were low-level workers.

16    The second ground of appeal is a new ground. It was not raised before the Primary Judge.

Ground One

17    The appellant appeared before me by telephone from the Immigration Detention Centre at Yongah Hill in Northam, Western Australia. He made no submissions going to the substance of his ground of appeal.

18    This ground is to the effect that, by relying on the transcript of only part of the appellant's visa interview recording annexed to the affidavit filed by the Minister on 20 April 2017, the Primary Judge misunderstood what happened at the interview.

19    The appellant contends that his words are left out of this transcript and included only the words spoken by the interviewer. This is incorrect. The transcript of interview which was before me clearly shows that it includes words spoken by the translator who was translating the appellant's answers, even if some of the translator’s responses were indecipherable.

20    There is a second affidavit by the appellant made on 2 May 2017. It annexes further submissions and a transcript of parts of the visa interview recording. This version of the transcript differs from the one provided by the Minister in two ways. First, a very short, second passage is transcribed. Second, for the five-minute passage referred to by the appellant in his submissions to the Court below, the words spoken by the appellant in the interview are translated and transcribed.

21    The orders made by the Primary Judge at the hearing on 23 March 2017 did not provide for the filing of a further affidavit.

22    The Primary Judge did not refer to this second affidavit in the reasons for judgment. I am not strictly required to consider it. Nonetheless I make the following observations.

23    Even if the Primary Judge had considered the transcript annexed to the appellant's second affidavit then, as the Minister submits, there would have been no error in his Honour's findings. The transcript does not establish that his Honour misunderstood what happened at the visa interview concerning the provision of documents to the interviewer. The appellant said he had documents in ‘Property’. It is not apparent as to what is meant by this. Whatever be the case, the transcript does not establish that the appellant had any relevant documents in his possession or that he attempted to provide documents to the interviewer.

24    As to the appellant's contention that he provided the CD recording to the Court below ‘…in full as an evidence to substantiate his claims’, it is to be noted that he did not say this in his submissions attached to his affidavit filed on 6 April 2017. Those submissions refer only to five minutes of the recording and only in the context of establishing that he provided certain documents to the interviewer.

25    Moreover, I am satisfied that, as the Tribunal set out in detail at [52]-[57] of its Reasons, which I set out above, the appellant’s interpreter was able to successfully interpret what was being said in the Bengali and English languages and that the appellant confirmed at various stages during the course and at the end of the interview that he was able to understand the interpreter clearly.

26    It must also be borne in mind that there was clear and cogent evidence before the Tribunal as to the bogus passports employed by the appellant and his patently false explanations given in respect of them. Not the least of these was that he told the Tribunal that he had had purchased the false passports in one identity two to three months prior to his departure from Bangladesh in April 2015 and that this was on account of the troubles he had encountered since November 2013. However there was evidence before the Department demonstrating that he had used this same identity since at least August 2010. This was but one of a number of egregious falsehoods advanced by the appellant before the Tribunal.

27    The first ground fails.

Ground Two

28    This is a new ground which was not raised in the Court below. There was no application made for leave to raise this further ground. Further it is an impermissible attempt to engage by mere assertion in merits review: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [62] affirming Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J. In any event, as I have explained, the appellant’s claims to have participated politically with the BNP and to have suffered harm in the past or be likely to suffer harm in the future on account of this were soundly rejected. Thus even were the contention advanced in ground two correct, it avails the appellant nothing.

Conclusion

29    For these reasons the appeal should be dismissed with costs.

Associate:

Dated:    22 December 2017