FEDERAL COURT OF AUSTRALIA

BNG16 v Minister for Immigration and Border Protection [2018] FCA 229

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from the orders of the Federal Circuit Court made on 22 September 2017, dismissing the application made to that court for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). On 6 June 2016, the Tribunal had affirmed a decision made on 17 October 2014 by the delegate of the Minister for Immigration and Border Protection refusing to grant the appellant a protection visa. The delegate had concluded that the appellant did not meet the criteria for the grant of a Protection visa under:

(a)    s 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations; or

(b)    s 36(2)(aa) of the Migration Act and subclause 866.221(4) of Schedule 2 to the Migration Regulations.

2    The appellant is from Bangladesh, of Bengali ethnicity and of the Muslim faith.

BACKGROUND

3    The appellant, who is now thirty-five, left Bangladesh in January 2012, travelling through Thailand to Malaysia, where he worked as a welder before travelling to Australia by boat. He arrived on 6 May 2013.

4    On 6 August 2013, the appellant applied for a Protection (Class XA) visa. The appellant claimed he and his family are supporters of the Awami League (AL). The Awami League won the parliamentary elections in Bangladesh in 2014 and has been in power since. He claimed (amongst other things) that he feared harm at the hands of the Bangladesh Nationalist Party (BNP), being the main opposition to the Awami League, and that if he returned he would be detained, tortured, extorted, abused and killed. The delegate recorded the appellant’s various claims, the events the appellant relied upon in relation to his application and the evidence and submissions made.

5    On 2 October 2014, the delegate interviewed the appellant. Oral submissions were made by the appellant’s representative in that interview which included submissions that, although the Awami League then controlled the appellant’s home area, the BNP held significant influence in the appellant’s village. The delegate found the appellant not to be credible and disbelieved many aspects of his claims and evidence. As recorded above, the delegate refused the application.

TRIBUNAL

6    The appellant appeared before the Tribunal on 11 April 2016 to give evidence and present arguments in relation to his application for review of the delegate’s decision. He was represented by a registered migration agent and an interpreter was present. There were pre-hearing and post-hearing submissions. The Tribunal also found aspects of the appellant’s claim not to be credible. However, its conclusions were different to those of the delegate, for example, in accepting that the appellant lived in Dhaka from 2001 to 2012 and that he was present at an altercation in 2001 in a tea shop between AL and BNP supporters. The Tribunal did not accept that the appellant was of ongoing interest to BNP supporters in his area because of the incident which had occurred in 2001 and also did not accept that his family had been threatened, subjected to extortion, or otherwise harmed as a result of that incident. In a carefully reasoned decision, the Tribunal concluded that the appellant did not meet the refugee criteria in s 36(2)(a) and s 36(2)(aa). As noted above, the Tribunal affirmed the delegate’s decision.

FEDERAL CIRCUIT COURT

7    The appellant’s grounds in its judicial review application to the Federal Circuit Court found their final form in an amended application filed 6 October 2016.

8    Ground one asserted that the Tribunal “mistook and misconstrued the facts” and failed to take into account relevant consideration and took into account irrelevant considerations and made a decision on “irrelevant facts and findings”. Ground one was supported by a number of particulars, one of which raised a new matter: that, if he returned, the appellant intended to increase the Awami support base and expose activities of the BNP members and that the appellant would therefore speak to the media and public about his knowledge of BNP activities: at [22]. The Federal Circuit Court concluded that the remaining particulars repeated the appellant’s claims before the Tribunal and that the appellant had not established that the Tribunal had not considered those claims: at [21]. It is evident from the Tribunal’s reasons that it considered these matters. As to the new matter, the Federal Circuit Court noted that it was not a claim made to the Tribunal, but that the Tribunal had considered whether the appellant would engage in political activity and whether he might suffer harm as a result of his support of AL. The Tribunal was not persuaded there was a real chance of harm as a result of the informal activities in support of the AL which the appellant would engage in when he returned.

9    Ground two contended that the appellant had severe mental stress which prevented the appellant from presenting oral evidence and that he informed the Tribunal of this. The Federal Circuit Court concluded that the evidence did not support that contention: at [27]. The Court noted that the appellant’s representative attended the hearing and that there was a reference to an adjournment during which the appellant spoke with his representative, after which the representative made oral submissions. The Court also noted that the representative provided further written submissions after the hearing addressing a variety of issues and including a reference to being “unable to properly instruct his representative during his hearing, owing to the lack of an interpreter during his natural justice break”: AB286. Those submissions, the Court noted, did not say the adjournment was because of severe mental stress but in any event “addressed the asserted problem by setting out further information”. The Court concluded there was no denial of procedural fairness.

10    Ground three, which overlapped with ground two, claimed a denial of procedural fairness “when he was forced to continue hearing”: [30]. It was supported by particulars. Those particulars and the reasons why ground three was rejected were explained in his Honour’s reasons at [31] to [34] (footnotes omitted):

31. The particulars to this ground claim the applicant’s “weakness to present evidence in sequence became a serious concern about the applicant’s credibility”, and the Tribunal concluded the applicant “has not told the truth in relation to crucial aspects of his claim”, and that the “whole hearing was conducted to destabilise the credibility of the evidence”. The applicant also claims that whatever he submitted to the Tribunal was true and correct to the belief of the applicant, and that the Tribunal was unreasonable in concluding that the documents the applicant submitted were not authentic.

32. There is no evidence to suggest the applicant was unable to give his evidence in sequence, or that the Tribunal conducted the hearing with a view to destabilising the applicant’s credibility. The Tribunal’s reasons for decision set out in detail the questions the Tribunal asked of the applicant. They do not suggest any unfairness in the method of questioning. On the contrary, the questions manifest the Tribunal’s examining in detail each of the applicant’s claims, and putting to the applicant the matters that caused the Tribunal concern for the purpose of giving the applicant an opportunity to address those concerns.

33. It is true the Tribunal did not accept some parts of the applicant’s evidence as credible. For example, although the Tribunal was prepared to accept the applicant’s claims about the teashop events, the Tribunal did not find credible the applicant’s claims that he and his family were threatened and subjected to extortion after the applicant left his village. It did not find the applicant’s claim credible because the applicant’s family remained in their local area, they provided financial support to the applicant when he was in Dhaka, the applicant’s father retained possession of the title deeds to the land and the applicant had not plausibly explained why his father could not recover the land the applicant claimed had been illegally taken by BNP supporters, and the AL is now in power the applicant’s family local area. These are matters on the basis of which it was reasonably open to the Tribunal not to accept as credible the applicant’s claims his family were threatened and subjected to extortion after he left his village for Dhaka.

34. It is also true that the Tribunal found the documents the applicant provided did not assist the applicant’s case, and that the Tribunal relied in part on country information that indicated that fraudulent documentation is readily available in Bangladesh. But that is not the only matter on which the Tribunal relied. One of the documents the applicant submitted purported to be his birth certificate that on its face was issued in 2011. The document the applicant submitted, however, contained the boat identity number of the boat on which the applicant travelled to Australia. The Tribunal noted “it was difficult to explain how a boat identity number appeared on a document that was issued in 2011”. It was reasonably open to the Tribunal, for the reasons it gave, not to place weight on the documents the applicant submitted to the Tribunal and to the delegate.

11    Ground four contended, in substance, that the Tribunal applied the wrong tests with respect to persecution and complementary protection. The Federal Circuit Court rejected this ground concluding that the Tribunal’s reasons showed that the Tribunal correctly identified and applied the relevant legal questions to the findings it had made. The Federal Circuit Court said at [38] (footnotes omitted):

I do not accept these claims or submissions. The Tribunal set out in its reasons the relevant provisions and principles it was required to apply when assessing the applicant's claims, and it referred to Ministerial Direction No.56 made under s.499 of the Migration Act 1958 (Cth). The Tribunal considered the applicants evidence about what he claimed occurred to him and his family in Bangladesh before he left that country, made findings about those claims, referred to country information, and, on the basis of its findings and the country information it accepted, the Tribunal considered and answered the questions it was required to consider and answer, namely, whether there was a real chance the applicant would suffer serious harm if he were to return to Bangladesh now or in the reasonably foreseeable future, and whether the applicant had a well founded fear of persecution because of his political opinions or any other Convention reason; or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm for any of the reasons the applicant claimed he would be subjected to harm.

THE APPEAL

Ground 1

12    Ground 1 is:

Hon. Judge Manousaridis of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act .The AAT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection AAT decision is unreasonable with regards to Complementary Protection Provision . The AAT failed adopt the view that “real risk” in complementary protection is based on the term “well founded fear” and the Appellant expect it should be interpreted consistently with the jurisprudence.The AAT did not accept the appeallant's family encountered problems living in their home area because of the Appellant's claimed political profile.Appellan’s family were threatened ad subjected to extortionand harassment after the appellant left his home village.

13    As developed in written submissions, ground 1 asserts that the Federal Circuit Court erred in not finding that the Tribunal applied the wrong test in relation to complementary protection, on the basis that the Tribunal failed to make separate findings with respect to the claims under s 36(2)(a) and s 36(2)(aa).

14    This ground must fail. The Tribunal set out its findings clearly and comprehensively from [73] to [101]. It was clear from the opening paragraph to this section of its reasons that the Tribunal was conscious that these findings were relevant to both the s 36(2)(a) and s 36(2)(aa) claims: [72]. The Tribunal’s conclusions with respect to s 36(2)(a) were set out in its reasons at [103]:

Having considered the applicant’s claims individually and cumulatively, and having regard to my findings of fact, I do not accept there is a real chance that he will suffer serious harm if he returns to Bangladesh, now or in the foreseeable future, for any of the reasons he has claimed. On the evidence before me, I do not accept that he has a well-founded fear of being persecuted for his political opinion or any of the other Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. The applicant is not a refugee.

15    The Tribunal’s conclusions with respect to s 36(2)(aa) were set out in [104] of its reasons:

Having found that the applicant is not a refugee, I have considered whether he meets the criteria for complementary protection. Having considered the applicant’s claims singularly and cumulatively and having regard to my findings of fact, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm for any of the reasons claimed. The applicant does not satisfy the criteria for complementary protection.

16    It was not a jurisdictional error to set out the findings of fact relevant to both claims in this manner or to make its decision in the way it did: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121; (2015) 232 FCR 452 at [36]. The appellant did not identify any error in the Federal Circuit Court.

17    To the extent the last two sentences of ground 1 are intended to raise a different issue, they can only be understood as impermissibly inviting a review of the factual merits of the claims made. Accordingly, ground 1 fails.

Ground 2

18    Ground two states:

The AAT misconstrued the facts when the appellant said “intended to increase the Awami support base and expose the activities of BNP members and therefore the applicant would be compelled to speak to media and public about his knowledge about the activities of BNP members”. The appellant has a legitimate expectation from the Hon. Court that it would make decision based on their own objective observation of materiials[sic] with regards to the appellant’s claim according to the Migration Act.

19    To the extent this can be construed as an assertion that the Tribunal failed to consider a claim that the appellant would speak to the media and public about his knowledge of the activities of BNP members, the Federal Circuit Court concluded at [22] that no such claim was made to the Tribunal, but was in any event dealt with:

The one paragraph in the particulars to the first ground of application that does not appear to repeat a claim the applicant made before the Tribunal is that the applicant intended to “increase the Awami support base and expose the activities of BNP members” and, therefore, the applicant “would be compelled to speak to the media and public about his knowledge about the activities of BNP members”. That is not a claim the applicant made before the Tribunal. In any event, the Tribunal considered whether the applicant would engage in political activity if he returned to Bangladesh. The Tribunal found that, based on the applicant’s evidence at the hearing, it was not satisfied the applicant was actively involved in politics in Dhaka. The Tribunal further concluded, however, that, even if the applicant occasionally attended AL meetings or programs in Dhaka and that, on his return, he would continue to engage in informal activity in support of the AL, it was not persuaded there is a real chance the applicant would be subjected to harm of any type simply because the applicant may informally support the AL.

20    The Tribunal said:

78. …Even if it were to be accepted that he occasionally attended AL meetings or programs in Dhaka and that, if he returned to Bangladesh, he would continue to engage in informal activity supporting the AL, I am not persuaded that there is a real chance that he would be subject to harm of any type simply because he may informally support the AL (whether by associating with other AL supporters or occasionally attending AL meetings) …

79. …Even if it were to be accepted that the applicant will support the AL informally at low level if he returned to his home area in Bangladesh, I am not satisfied that there is a real chance (rather than one that it is remote) that he will face serious harm or significant harm for this reason.

92. …In my view, the applicant’s evidence does not indicate that he is in possession of any information that is adverse to the interests of the BNP. On the evidence before me, I do not accept that the applicant would be of adverse interest to the BNP for any of the reasons claimed. I do not accept that his family’s land has been taken or that his father has been forced to pay money to the BNP or that the applicant would be compelled to take action to recover his family’s land or, as the submissions made on his behalf contend, speak publically to the media about his claimed ‘knowledge of the activities of the BNP members’.

21    The Federal Circuit Court’s decision is not shown to be affected by legal error. The Tribunal dealt with the case put to it, namely that the appellant would speak publically to the media about his claimed knowledge of BNP activities. It rejected that claim. No jurisdictional error on the part of the Tribunal was identified by the appellant to the Federal Circuit Court.

22    The last sentence of ground 2 implies that the Federal Circuit Court should have made its own factual findings in this respect. That was not the role of that court; its task was strictly one of judicial review.

23    This ground fails.

Ground 3

24    Ground 3 is in the following terms:

The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision ignored the basic principles of objective observation of materials presented by the Appellant. The Tribunal’s whole arguments to affirm the decision of the first Respondent are unreasonable and against the procedural fairness.

25    As a similar ground was developed before the Federal Circuit Court, this ground might be understood to assert that the appellant was denied procedural fairness at the hearing because he continually claimed to be suffering severe mental stress and asked for the hearing not to continue. As noted above, the Federal Circuit Court rejected this ground. Its reasons for rejecting this ground are not affected by legal error. There is nothing in the Tribunal’s reasons, or in the Federal Circuit Court’s reasons, or in other material before this Court, which would support a contention that the appellant was not provided with a proper opportunity to give an account of his experiences, to present his arguments or to understand and respond to questions put to him. There is nothing which suggests that the appellant was suffering from a condition or circumstances of sufficient detrimental effect so as to have prevented him from a meaningful hearing. It was, for example, not raised in the post-hearing submissions despite the issue with respect to the lack of an interpreter during the adjournment being raised or in the Tribunal’s comprehensive reasons.

26    The Tribunal took into account the fact that the appellant was in difficult circumstances. At [75], it said:

In this particular case, I accept that the applicant is a young man of limited education. I accept that he may have been nervous appearing before the Tribunal. I have taken these matters into account in assessing his evidence. On the evidence before me, I am prepared to accept that the applicant lived in Dhaka from 2001 and 2012.

27    To the extent this ground is related to the argument put to the Federal Circuit Court that the appellant did not have an interpreter during an adjournment, the Tribunal dealt with this issue in paragraph [102] of its reasons:

The applicant’s representatives have submitted that the applicant was unable to properly instruct his representatives at the hearing because, when the hearing was adjourned, an interpreter was not available to assist the representative to communicate with her client. What Ms Mansour referred to as a ‘natural justice break’ was, in fact, the opportunity the applicant had to speak to his representative in private when the hearing was adjourned. The Tribunal notes that the applicant has had an opportunity to speak to the Tribunal with the assistance of an interpreter after the hearing resumed and his representative also made oral submissions on his behalf. His representative requested and was granted time to submit post-hearing submissions, which she duly did and which I have considered. Whilst it is not ideal that the representative could not locate the interpreter during the adjournment, I am satisfied that no practical injustice arises as a result of this situation.

28    It is plain from the Tribunal’s reasons (and the further written submissions provided by the appellant to the Tribunal after the Tribunal hearing) that the appellant had an opportunity to put whatever further submission he wanted after the hearing. Whilst proper opportunity is sufficient for procedural fairness, the appellant in fact availed himself of the opportunity.

29    Ground 3 is not made out.

Ground 4

30    Ground 4 is as follows:

The Tribunal made decision with closed mind.

31    This case was not put to the Federal Circuit Court. The circumstances in which this Court will grant leave to argue a new ground on appeal were reviewed in SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [21]-[31]. The respondent does not point to particular prejudice, but fairly refers to his interest in timely disposal of applications and the fact that this Court should not become the de facto Court of original jurisdiction when sitting on appeal: SZKMS at [30]. This ground of appeal, if leave were granted, to rely upon it, would fail. The reasons of the Tribunal show that it did not approach the matter with a closed mind. Whilst the result was an affirmation of the delegate’s decision, the reasoning shows that the Tribunal approached the matter afresh; for example, it reached different factual conclusions on significant matters. Its reasons reveal a careful consideration of the appellant’s claims. I refuse leave to raise ground four on the basis it has no prospect of success.

Other Matters and Conclusion

32    At the hearing of the appeal, the appellant made submissions concerning his birth certificates. A similar issue was dealt with by the Federal Circuit Court at [40] to [43]. The appellant did not identify any error in the way the Federal Circuit Court dealt with his submissions or the way in which that court dealt with the new birth certificate he produced to the court at the hearing. The Tribunal accepted the identity of the appellant was as claimed (Tribunal reasons at [1]), notwithstanding the concerns of the delegate in that regard – see: Tribunal reasons at [31]. The appellant did not point to any jurisdictional error on the part of the Tribunal related to his birth certificates.

33    The appeal is dismissed with costs.

Associate:

Dated:    9 March 2018