FEDERAL COURT OF AUSTRALIA

AIL16 v Minister for Immigration and Border Protection [2018] FCA 250

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time be dismissed.

2.    The first and second applicants pay the first respondents 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    By an application filed 19 October 2017, the applicants apply for an extension of time under rule 36.05 of the Federal Court Rules 2011 in which to file a notice of appeal from a decision of the Federal Circuit Court delivered on 21 September 2017. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 January 2016. The Tribunal had affirmed a decision of a delegate of the First Respondent (Minister) not to grant the applicants protection visas.

2    The application for an extension of time is supported by an affidavit, dated 19 October 2017, in which the first applicant notes that he is unrepresented. The applicant states that he assumed that he had 28 days from the date of the decision in which to file a notice of appeal.

3    Under rule 36.03, the notice of appeal needed to be filed within 21 days of the date of the Federal Circuit Court decision. The applicants were, accordingly, one week late.

4    The Minister submits that the first applicant’s misunderstanding as to the time limit is not an adequate explanation for the delay, but accepts that what is likely to be determinative with respect to the grant of an extension of time is the prospect of success of an appeal should an extension be granted. I will proceed on the same basis.

5    The applicants rely on an outline of submissions dated 4 December 2017. There is no draft notice of appeal which identifies any specific proposed ground of appeal should an extension be granted. The applicants and respondent were content to proceed on the basis of the two grounds of appeal identified in the outline of submissions.

BACKGROUND

6    The applicants are citizens of Bangladesh. They arrived in Australia in 2013 under visitor visas. According to the first applicant’s evidence before the Tribunal, the first applicant ran an electronics business between 1998 and 2005 before setting up an export business manufacturing sweaters. When his export business became successful, he contributed TK 20,000 a month to support the Jamaat-e-Islami (JI) organisation. He claimed that since 1992, he had been an active member of the student wing of JI, known as Chatra Shibir. He said he was a “leading member” in, or “dedicated activist” of, JI and represented three to four hundred people in his local area as “Rukon”.

7    He claimed that since the rise of power of the Awami League in 2008 (AL), many JI leaders had been kidnapped, detained, and executed in Bangladesh. The first applicant believed he was also a target, and claims to have received anonymous phone calls from possible AL activists; a visit to his residence by five or six JI activists; and a visit from four persons at his office. Around or after September 2013, the applicants relocated to the first applicant’s parents’ home and, on 24 December 2013, left Bangladesh for Australia.

8    In January 2014, the applicants applied for Protection (Class XA) visas. The first applicant’s claims were set out in a letter from the applicants’ migration agent and in a written statement. The first applicant stated that he suffered a fear of harm from government agencies and Awami League activists due to his position as a leading member of JI. The delegate refused the applications for the protection visas on 6 August 2014.

TRIBUNAL

9    The applicants sought review in the Tribunal and attended a hearing on 1 July 2015. The first applicant provided written submissions prepared by his advisor, and also provided oral submissions with the assistance of a Bengali interpreter. On 17 January 2016, the Tribunal affirmed the decision of the Minister not to grant the applicants protection visas.

10    The Tribunal’s findings included those recorded at [43]:

In the circumstances, and given the Tribunal’s concerns, the Tribunal makes the following findings:

(a)     The first applicant was born on 16 January 1976;

(b)     The first applicant married the second first applicant, who was born on 5 January 1981, on 18 July 1996;

(c)     The third applicant was born on 26 July 2005; the fourth applicant was born on 19 June 2009;

(d)     The first applicant was educated to university level, graduating with an Arts degree in 1998;

(e)     after graduating the first applicant and his family settled in Dhaka, where he initially ran an electronics business from 1998 to 2005;

(f)    in 2005 the first applicant set up an export business manufacturing sweaters;

(g)     as that business became successful he contributed TK 20,000 per month to JI as part of his support of it;

(h)     the first applicant was a member of the JI political party in Bangladesh, and held a position as “Rukon”, arranging meetings and religious conferences to take care of the welfare and religious activities of those members. The Tribunal does not accept, as claimed, that the first applicant was a “leading member” or “dedicated activist” of JI. The Tribunal finds these claims to be exaggerated;

(i)     prior to being a member of JI, the first applicant was involved in its student wing, Chatra Shibir;

(j)     JI supported him financially when he joined in 1992 and also when he got married in 1996, and for the period that he was a student;

11    The Tribunal set out what it did not accept at [44]:

The Tribunal does not find, nor accept, on the basis of the first applicant’s uncorroborated say-so, and in light of its findings above as to his reliability, that:

(a)    the first applicant received anonymous phone calls on many occasions since 2011 when the war crimes trial began;

(b)    he has been listed as a target because of his profile and position in JI for such     a long time;

…

(d)     in February 2011 his wife called him to say that AL activists were at his residence enquiring where he was, as a result of which the first applicant was so concerned he did not return home from his business for a week or so; and that he left his wife and very young children alone at that time;

(e)    at some point in 2011 AL activists attended his children’s school to send him a warning about his JI activities;

(f)    at other unidentified times he received threats that his children would be kidnapped;

(g)    the first applicant and his family decided to relocate to avoid any mishap, and moved to another location in the same suburb;

(h)    in September 2013 JI activists attended his office to warn him that he needed to assess his current position in JI, and that they were considering whether tribunal proceedings could be laid against him since he was a leading member of the local JI organisation; or

(i)    following that visit he immediately relocated with his family to his parents place.

12    The Tribunal noted the first applicant feared persecution “on his political opinion of being a member, if not a leading member, of JI”: at [45]. The Tribunal set out an extract from the DFAT Country Report for Bangladesh dated 20 October 2014, which included:

3.55 DFAT assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Opposition leaders, or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face a higher risk of arrest when engaged in political protests.

13    The Tribunal then concluded at [47] to [48]:

47. As noted above, while the Tribunal accepts that the first applicant was a member of the JI and prior to that Chatra Shibir, it does not accept that he was either a “leading member” or “dedicated activist” as claimed. Accordingly, the Tribunal does not accept that there is anything about the first applicant’s profile which suggests that he faces a real chance of serious harm if he returns to Bangladesh. The Tribunal finds that this conclusion is supported by the country information referred to above.

48. In the circumstances, the Tribunal does not accept that one or more of the five Convention reasons, including the first applicant’s political opinion, will be the essential and significant reason for the first applicant being harmed if he returns to Bangladesh.

THE FEDERAL CIRCUIT COURT

14    On 15 February 2016, the applicants filed an application for judicial review of the decision of the Tribunal.

15    Before the Federal Circuit Court, the applicants made two complaints in oral submissions, additional to the two grounds the subject of the application. First, the applicants submitted that the delegate and the Tribunal did not listen to the first applicant and had a preconceived notion that he was lying. Secondly, the applicants submitted that the delegate and the Tribunal did not take certain evidence into account. The Federal Circuit Court correctly noted that, insofar as the applicants’ concerns were with the delegate’s decision, that matter could not be the subject of the proceedings before the Tribunal: at [33].

16    As to the first matter, the Federal Circuit Court considered that the first complaint could be seen as a contention that the Tribunal did not conduct the review with an open mind. The Federal Circuit Court concluded that neither actual nor apprehended bias on the part of the Tribunal was made out on the evidence: at [34]. The Federal Circuit Court noted that the Tribunal had, contrary to the approach taken by the delegate, accepted certain elements of the first applicant’s claims notwithstanding the absence of any supporting corroborative documentation: [36]. Specifically, it accepted that he was a member of JI political party and supported it and that he was a Rukon. However, the Tribunal did not accept his claims about his prominence and leadership role.

17    As to the second matter, the Federal Circuit Court enquired what evidence it was alleged the Tribunal failed to take into account. The first applicant contended that it was a document indicating that he was an active and prominent member of JI and had been targeted on that basis: at [40]. In support of that contention, the first applicant referred to a document from Wikipedia. That document contained a general description of the Bangladeshi JI. That document was not referred to in the Tribunal’s reasons for decision. That document was not about the first applicant. The Federal Circuit Court concluded at [42]:

In so far as there is a discussion in the article about mistreatment of leaders of JI …the Tribunal found, for reasons which it gave and which were reasonably open to it on the material before it, that it did not accept the [first] applicant’s claims about his prominence and leadership role in the JI party.

18    The Federal Circuit Court concluded that the Tribunal’s failure to refer to the general article about JI, or to aspects of that article in relation to mistreatment of JI leaders, did not establish jurisdictional error: at [43].

19    The Federal Circuit Court then turned to the two grounds of appeal the subject of the application to that court. The first ground was that the Tribunal failed to provide reasons for its decision in respect of the complementary protection claim under s 36(2)(aa) of the Migration Act 1958 (Cth). The Federal Circuit Court concluded that this ground was not made out.

20    The Tribunal referred to s 36(2)(aa) and, at [50], set out its understanding of what that provision required. The Tribunal then went on to state at [51]:

Having considered the first applicant’s circumstances and having regard to the October 2014 DFAT country information, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm in terms of s36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

21    The reference to “[h]aving considered the first applicant’s circumstances”, was clearly a reference to the Tribunal’s earlier consideration of the first applicant’s evidence and claims in relation to the fear persecution claim under s 36(2)(a). It was not necessary for the Tribunal to restate the earlier factual matters when dealing with the complementary protection criterion. No suggestion was made to the Federal Circuit Court, or to this Court, that there were separate complementary protection claims not considered in relation to the fear persecution claim. There was no jurisdictional error in approaching the matter in this way: SZSYI v Minister for Immigration and Border Protection [2015] FCA 1276 at [46]-[47]; SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 at [36].

22    The second ground the subject of the application to the Federal Circuit Court was that the Tribunal failed to apply the correct test under s 36(2)(aa) of the Act. This centres around a complaint that the Tribunal did not deal separately with, or “disaggregate”, the claims under s 36(2)(a) and s 36(2)(aa). The Federal Circuit Court did not err in concluding that the Tribunal correctly identified the test under s 36(2)(aa) and that it distinguished between the two claims: at [49].

APPLICATION FOR AN EXTENSION OF TIME

23    The written submissions dated 4 December 2017 filed by the applicants contain two grounds which would be relied upon if time in which to appeal were extended. They seek to raise matters which were not the subject of any ground of review put to the Federal Circuit Court and for that reason, do not identify any error. This Court is exercising appellate, not original, jurisdiction in this case. The appellate jurisdiction is concerned with the correction of error; it follows that error must be identified. Nevertheless, I consider the grounds advanced.

Ground 1

24    The first ground is that the Tribunal failed to consider the first applicant’s claim to be a member of particular social groups, namely “regular financial contributors of the JI” and “businessmen holding a political opinion supporting the JI”.

25    The Tribunal accepted that the first applicant successfully established a business and financially contributed to JI: at [43]. The Tribunal did not accept that the applicant was a leading member or a dedicated activist of JI. Having regard to country information, the Tribunal was not satisfied that there was anything about the first applicant’s profile which suggested he would face a real chance of harm: at [47]. The applicants did not put a case to the Tribunal or to the Federal Circuit Court that the first applicant was a member of the particular social groups identified in the written submissions. The applicants did not put to this Court that the social groups now identified was in some material way to be distinguished from the claim he otherwise put forward, which included his status as a businessman and contributor. The first applicant’s claim to be a member of the particular social groups identified is no more in substance than a restatement of the first applicant’s claims for protection which the Tribunal did consider.

26    Ground one in the written submissions does not identify an error in the reasons of the Federal Circuit Court sufficient to warrant the grant of an extension of time in which to appeal.

Ground 2

27    Ground two in the written submissions asserted that the Tribunal fell into jurisdictional error in (a) failing to engage in an active intellectual process and (b) failing to make enquiries as required by law. Ground two is linked to ground one in that the alleged failure to enquire and failure to give proper consideration was asserted to be a failure to consider his claim as a member of a particular social group of “businessmen holding a political opinion supporting the Jamaat-e-Islami”.

28    As to the asserted failure to engage in an active intellectual process, it can be accepted that, where a decision-maker is required by statute to consider a claim or other mandatory criteria, the decision-maker must engage in an active intellectual process directed at that claim or criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45]. However, such a conclusion “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

29    As to the asserted failure to enquire, the applicant’s written submissions referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and subsequent cases which address circumstances where a failure to enquire might constitute jurisdictional error. For present purposes, it may be accepted that a failure to make an obvious inquiry about a critical fact might in a particular case be sufficient to give rise to jurisdictional error, for example as a constructive failure to exercise jurisdiction – see: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25].

30    The Tribunal accepted that the first applicant was a businessman and that he supported JI, including through financial contributions. It engaged sufficiently in an active intellectual process on the case put to it by the applicant and, indeed, accepted substantial parts of it.

31    In oral submissions, the applicant contended that the Tribunal should have made enquiries concerning his leadership position in JI. The principles established by cases such as Prasad do not extend so far. The Tribunal considered the first applicant’s claim that he was a leader and considered the material he provided. It was not under an obligation in the circumstances of this case to pursue its own enquiries and the fact that it did not make such enquiries did not give rise to a jurisdictional error.

CONCLUSION

32    The grounds of appeal as identified in the applicant’s written submissions do not disclose sufficient prospect of success on appeal to warrant the granting of an extension of time. The applicant has not shown error in the reasons of the Federal Circuit Court for dismissing the application made to it. Accordingly, the application for an extension of time is dismissed, with costs to be agreed or assessed.

Associate:

Dated:    9 March 2018