FEDERAL COURT OF AUSTRALIA

SZHGF v Minister for Immigration and Border Protection [2018] FCA 252

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 a decision of the Federal Circuit Court delivered on 29 September 2017, which dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 23 March 2017.

2    The Tribunal affirmed a decision made on 2 April 2015 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act). The Tribunal affirmed the Minister’s decision, it not being satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

Background

3    The appellant is a Bangladeshi citizen. He entered Australia on 1 September 2001 on a Temporary Work (Entertainment) visa (Subclass 420). On 4 September 2001, he applied for protection on the basis of the criterion under s 36(2)(a) of the Act (First Application). His application was refused. The appellant applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision and the RRT affirmed the decision on 9 April 2003. The appellant unsuccessfully sought judicial review of the RRT’s decision in the Federal Magistrates Court and also made unsuccessful applications to the Full Court of the Federal Court and ultimately the High Court. He subsequently made a number of requests for ministerial intervention pursuant to s 417 of the Act, and further applications for judicial review, all of which were dismissed.

4    The appellant remained in Australia and was detained as an unlawful non-citizen on 12 September 2012. On 18 October 2012, the Migration Review Tribunal refused the appellant’s application for a bridging visa, and on 18 December 2012 he lodged a further claim for protection pursuant to the ‘complementary protection’ criterion under s 36(2)(aa) of the Act (Second Application).

5    The Second Application was accepted as valid on the basis that it did not raise the same essential criterion as the First Application, which predated the introduction of the ‘complementary protection’ laws in s 36(2)(aa). Therefore, s 48A of the Act did not operate to prevent the making of the Second Application, notwithstanding that the appellant had remained in the migration zone continuously since the First Application was refused – see: SZGIZ v MIAC (2013) 212 FCR 235; [2013] FCAFC 71 at [32], [47].

6    On 2 April 2015, the Minister’s delegate refused to grant a protection visa on the basis that the appellant failed to meet the criterion under s 36(2)(aa) of the Act.

7    A significant part of the appellant’s claim was that his active involvement with the Bangladeshi opposition party, the Bangladesh Nationalist Party (BNP), and groups affiliated with the BNP in Australia would place him at risk of significant harm if he were to return to Bangladesh. He claimed his involvement with the BNP began in 1990 through the party’s student wing, the “Chatra Dal”, and continued to the present day through the BNP-affiliated group, “BNP Australia”.

Tribunal

8    The appellant appeared before the Tribunal on 31 October 2016 and 7 December 2016 to give evidence and present arguments in respect of the delegate’s decision to refuse the Second Application. The hearing was conducted with the assistance of an interpreter and the appellant was represented by his registered migration agent.

9    The Tribunal confined its consideration to whether the appellant satisfied the requirements for ‘complementary protection’ under s 36(2)(aa). It considered the appellant’s submissions and the independent material referred to in the delegate’s decision and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, namely DFAT Country Information Bangladesh, 5 July 2016.

10    While the Tribunal accepted that the appellant had been an ordinary supporter of the Chatra Dal between 1991 and 1993, and that he had engaged in some activities with groups affiliated with the BNP while in Australia, it raised significant concerns regarding the truth of the appellant’s claims, and provided detailed reasons for its adverse credibility findings at [26]-[41]. It stated at [26]:

Considering the written and oral evidence before it … the applicant is not a credible witness and his claims are not reliable or credible. The Tribunal found his evidence at the hearing to be inconsistent with his written claims even allowing for amendments he made prior to the hearing. His evidence was lacking in detail on issues which, if his claims were true, could have been dramatic and memorable to him. Further he was confusing and evasive on a number of points and he showed a tendency to change the subject or introduce irrelevant information when pressed on a particular point. New claims were introduced at the hearing and inconsistencies arose on his oral evidence. A number of his claims were also exaggerated and inherently implausible.

11    And at [42]:

Cumulatively the credibility issues for the Tribunal are significant so as to undermine the entirety of the applicant’s claims.

12    Of particular relevance to the arguments put on the present appeal:

(1)    The Tribunal noted that the appellant’s passport had been renewed while he was in Australia.

(2)    The Tribunal did not accept the extent of the appellant’s involvement with the BNP Australia. Specifically:

(a)    the Tribunal noted his claimed involvement was not raised in the First Application or when he filed the Second Application in 2012;

(b)    the appellant was unable to elaborate the roles he claimed to hold in the organisation or provide details in relation to meeting times or activities apparently undertaken by the organisation; and

(c)    despite arranging a further hearing to discuss photographs submitted by the appellant to substantiate his claimed involvement, the Tribunal noted the appellant “demonstrated little insight or memory” of the events he claimed to participate in and provided “extremely vague” evidence which lacked detail.

(3)    The Tribunal did not accept that the Awami League or anyone else in Bangladesh would have any knowledge of the appellant’s involvement with BNP Australia, such that he would be likely to be perceived to hold views antithetic to the government and be at risk for this reason. The Tribunal could find no country information suggesting the Bangladeshi government monitored the BNP or protest activities, either in Australia or overseas. It also noted that the BNP Australia Facebook page had, at that time, a total of 137 people who ‘liked’ the page, and was not satisfied that the appellant had a political profile that would place him at a real risk of significant harm.

13    The Tribunal ultimately concluded that the appellant did not face a real risk of suffering significant harm on political grounds, due to his previous work as a businessman or his interest in music and acting, or for any other reason: at [50]-[51].

Federal Circuit Court

14    On 18 April 2017, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. The application was subsequently amended on 18 September 2017.

15    Ground one of the amended application alleged that the Tribunal breached ss 424A and 424AA of the Act by failing to put adverse information to the appellant, namely the Facebook page of the group calling itself the ‘Bangladesh National Party Australia’.

16    In rejecting ground 1, the primary judge found that the Facebook page was not information enlivening any obligation under s 424A on the basis that it was not information that “negates, undermines, denies or rejects” the appellant’s claims: at [36]. As such, there was no breach of the procedural requirements in s 424AA. The Court also found that the information was of a kind that fell within the exception under s 424A(3)(a), as “information that [was] not specifically about the applicant or another person and [was] just about a class of persons of which the applicant or other person [was] a member”. His Honour did not accept that the information was used in a fashion as if it were about the appellant personally: at [37].

17    Ground two of the amended application alleged that the Tribunal had asked itself the wrong question or made a decision so illogical that no reasonable person would have made it, in dealing with the question of whether the appellant departed Bangladesh on a false passport. Ground two before the Federal Circuit Court was in the following terms:

The Tribunal has asked itself the wrong question and/or made a decision so illogical that no reasonable person would have made it.

Particulars

The Tribunal has asked itself the wrong question by considering the claim by the Applicant to have left Bangladesh without a Passport by instead dealing with the proposition at paragraph [47] of the decision that the Applicant “now has a new Bangladeshi passport” and considering whether the Applicant therefore has “no outstanding police charges against him”.

18    In dealing with the assertion that the Tribunal had asked the wrong question in considering the appellant’s claim to have left Bangladesh without a false passport, the Federal Circuit Court said:

The assertion of the applicant that he had left on a false passport is the subject of the adverse credibility findings by the Tribunal and also the identified migration history of the applicant in which the applicant arrived in Australia on a Temporary Work (Entertainment) visa (Subclass 420). The observations by the Tribunal were the obtaining of a new passport suggests the Bangladeshi authorities had no adverse in him [sic], and, in particular, that no outstanding police charges against him was an open observation by the Tribunal and cannot be said to lack an evident and intelligible justification.

19    Counsel for the appellant also contended that the appellant’s ability to obtain a new passport was not a matter that rationally or logically supported the Tribunal’s findings that the appellant was not of adverse interest to the Bangladeshi authorities, or that there were no outstanding police charges against him. The primary judge rejected this submission, finding that it was open to Tribunal to make these observations on the basis of the evidence before it, and that such observations “cannot be said to lack an evident and intelligible justification”: at [40], [41].

20    The Federal Circuit Court dismissed the appellant’s amended application for review.

The Appeal

21    The grounds of appeal are set out in a Notice of Appeal filed on 20 October 2017.

Ground 1

22    Ground 1 claims that:

The Federal Circuit Court misdirected itself at paragraph [37] of the decision in finding that the information obtained by the Tribunal was not “information … of a kind that enlivens any obligation under s 424A of the Migration Act” and/or that the information was “of a kind that falls within an exception under s 424A(3)(a)”.

23    In submitting that the Facebook page was “information” for the purposes of s 424A, Counsel for the appellant relied on the decision of Judge Dowdy of the Federal Circuit Court in AEN16 v MIBP (2016) 311 FLR 486 (AEN16). In that case, the applicant claimed to have an ongoing fear of persecution in Bangladesh due to his conversion from Islam to Christianity. The matter before the Federal Circuit Court was whether the Tribunal had failed to comply with the requirements of s 424A by failing to give particulars of “information” that it considered would be the reason, or part of the reason, for affirming the decision under review. The relevant information was contained on the applicant’s personal Facebook page, which stated the applicant was a Muslim (undermining his claim to have converted to Christianity). The issue before Judge Dowdy was whether the content of the Facebook page was “information” for the purposes of s 424A of the Act.

24    In finding that the applicant’s personal Facebook page contained “information” for these purposes, his Honour stated at [23] that:

… [W]hilst the Facebook page communicated an inconsistency with the Applicant’s claim to be a Christian, that was not all it did. Information and documents comprising, communicating and conveying information can serve two ends. They can speak to a person’s inconsistency and lack of credibility, as the Facebook page obviously did but also at the same time constitute information rejecting, denying or undermining an applicant’s claims to be a person to whom Australia owes protection obligations. In this case, the Facebook page contained evidentiary material that had the effect of being a rejection, denial or undermining of the Applicant’s core and essential claim to be a Christian and in my view was information for the purposes of s 424A of the Act “that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. It was much more than just merely relating to “the existence of doubts, inconsistencies or the absence of evidence” [citing SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]].

25    In the present case, the number of people who ‘liked’ the BNP Australia Facebook page was referred to by the Tribunal in considering whether any activities engaged in by the appellant at BNP events in Australia might come to the attention of the Awami League or anyone else in Bangladesh. The Tribunal considered this issue because it had concluded that the appellant had “manufactured activities with the BNP Australia for the purposes of obtaining a positive migration outcome”: at [42].

26    The Tribunal said, at [44] (footnotes omitted):

The Tribunal accepts that the applicant has engaged in some activities with groups affiliated with the BNP in Australia. Although the Tribunal finds that the applicant has engaged in this activity for the purposes of his claim for protection the Tribunal has considered whether due to this activity he would be perceived to hold views antithetic to the government and be at risk for this reason. The Tribunal is not satisfied that the Awami League or anyone else in Bangladesh would have any knowledge of the applicant’s limited involvement in the BNP Australia such that there would be a real risk of the applicant facing significant harm. The applicant identified that the photographs had been taken with his personal camera. The Tribunal asked the applicant about the purpose of the photographs several times and he consistently evaded the questioning. The Tribunal is not satisfied that any photographs of the applicant at BNP events in Australia have been published. The Tribunal has considered the risk of information via word of mouth or other means. It is noted that the Facebook page of the group calling itself the ‘Bangladesh Nationality Party Australia’ has a total of total of 137 people who ‘like’ the page/organisation. In this context the Tribunal is not satisfied that the applicant has a political profile that would place him at a real risk of significant harm. Furthermore the Tribunal could locate no country information to suggest that Bangladeshi government engaged in any monitoring of BNP or protest activities, either in Australia or overseas in general. On the evidence before it the Tribunal is not satisfied that the government of Bangladesh, the Awami League or anyone else has any interest in, or monitors the activities of the BNP Australia such that this would give rise to any risk of creating a profile for the applicant.

27    The Tribunal’s reliance on the number of people who ‘liked’ the Facebook page was of marginal relevance to the ultimate conclusion of the Tribunal that it was not satisfied that the government of Bangladesh, the Awami League or anyone else had any interest in, or monitored the activities of the BNP Australia such that it would give rise to any risk of creating a profile for the appellant.

28    The information – being the number of people who ‘liked’ the Facebook page – was not information “specifically about the applicant” for the purposes of s 424A(3)(a), even if it was “information” under s 424A (which it is not necessary to decide, but about which there is significant doubt). The information was clearly not specifically about the applicant; it made no mention of him and did not directly concern him. The content of the Facebook page is readily distinguishable from that in AEN16, which was the applicant’s personal Facebook page and about the applicant in that case. This ground of appeal fails.

Ground 2

29    Ground 2 of the appeal is as follows:

The Federal Circuit Court misdirected itself by holding that the finding by the Tribunal that the Appellant had obtained a new Passport "suggests the Bangladeshi authorities had no adverse interest in him" was neither unreasonable, irrational or illogical.

30    This ground of appeal relates to paragraph [47] of the Tribunal’s reasons:

The Tribunal has also considered the claim by the applicant that he left the country on a false passport. The applicant now has a new Bangladeshi passport issued while he was in Australia. This suggests that the Bangladeshi authorities have no adverse interest in him and in particular there are no outstanding police charges against him. The Tribunal does not accept that the applicant has a real risk of significant harm for this reason.

31    The appellant submits that the Federal Circuit Court’s conclusions at [40] and [41] also lack “an intelligible justification” and may be “regarded as assertion based”. It should be noted that ground two before the Federal Circuit Court is different to ground two before this Court.

32    It is important to see how this issue arose before the Tribunal and its significance to the ultimate conclusions. It became clear during the Tribunal hearing that the appellant had used a false passport to leave Bangladesh and that he had realised it might be difficult returning to Bangladesh using that false passport: Transcript pages 5-7. The appellant gave this evidence: “I thought I might have trouble if I use my – use that [false] passport to get back to my country…”: Transcript page 7. However, he had obtained a new Bangladeshi passport whilst in Australia and so would not need to return on a false passport. To the extent this can be regarded as a claim raised “squarely” on the material within the meaning of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [68] or SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37], the Tribunal dealt with it.

33    No claim had been made that there was a fear about returning to Bangladesh because some adverse consequence would follow from the fact that he had used a false passport to leave Bangladesh. It was not suggested that such a claim was made, expressly or implicitly.

34    In relation to the question of whether there were outstanding charges against the appellant in Bangladesh, the position was as follows. In the context of his First Application, the appellant had asserted that charges had been filed against him and that a warrant had been issued for his arrest from the Dhaka Metropolitan Magistrates Court – see: Tribunal reasons at [16v]. He had asserted that the case against him had been fabricated. The appellant’s assertions were not abandoned at the time of making the Second Application for a protection visa, but were abandoned before the Tribunal (which was reviewing the delegate’s decision on the Second Application). The appellant submitted a statutory declaration to the Tribunal, declared 24 October 2016, in which he stated that his assertions about cases filed against him in the context of his First Application were incorrect – see: Tribunal reasons at [19iii] and Statutory Declaration at [3] at AB247. On this appeal, it was confirmed that the charges and warrant referred to in the Tribunal’s decision at [16v] put forward in support of the First Application were not correct and that no cases had been filed against him.

35    It is for the Tribunal to make findings of fact from the material before it and to draw inferences. The question for the Federal Circuit Court was whether jurisdictional error was established and this could not be established merely by showing that a different conclusion was open or even that a different conclusion might be preferred by the court hearing the judicial review application. A decision may be vitiated on the ground of jurisdictional error if it is based on illogical or irrational findings of fact or reasoning, although it is not every lapse in logic that will constitute jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]; Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [213].

36    In SZMDS, Crennan and Bell JJ said at [130]:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

37    In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30], the Full Court of this court stressed that “to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality must be demonstrated measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. Their Honours noted that “even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”.

38    The Tribunal did not reject the claim by the appellant that he left Bangladesh on a false passport. It did not make any express finding in that respect, but implicitly accepted that he had: at [47]. The Tribunal noted that the appellant had a new passport issued while he was in Australia. It is clear enough that the Tribunal was making the point that the appellant would not need to use his false passport to return to Bangladesh. The appellant did not give evidence that there were outstanding police charges against him; the effect of his evidence to the Tribunal was that his earlier evidence to the contrary was false. It is true that it is not obvious why the issuing of a new passport “suggests that the Bangladeshi authorities have no adverse interest” in the appellant: [47]. However, it is not every lapse in logic in otherwise sound reasoning that gives rise to jurisdictional error. Noting that there was no express claim by the appellant that he feared adverse consequences on his return as a result of having left Bangladesh on a false passport, the Tribunal’s observation that the appellant’s obtaining a new Passport “suggests the Bangladeshi authorities had no adverse interest in him” is not something which shows that the Tribunal’s decision was one which was affected by jurisdictional error.

39    Accepting that paragraph [47] could have been better expressed, I do not understand the second and third sentences as meaning that the Tribunal considered there were “no outstanding police charges” against him because a new passport had been issued. Those sentences were:

The applicant now has a new Bangladeshi passport issued while he was in Australia. This suggests that the Bangladeshi authorities have no adverse interest in him and in particular there are no outstanding police charges against him.

Rather, the finding concerning the absence of police charges appears to be an independent or stand-alone finding not connected to the issuing of a new passport. I reach that conclusion because the appellant’s previous allegations and evidence concerning police charges had been incorrect and had been withdrawn by him before the Tribunal. No new allegations of outstanding charges or arrest warrants had been put forward. His case did not revolve in any way around the existence of outstanding charges. Even if this interpretation of those two sentences is wrong, and there is an intended link between the absence of police charges and the issuing of a new passport, the arguable consequent lapse in logic is not one which constitutes jurisdictional error.

40    This ground of appeal therefore also fails.

41    The appeal is dismissed with costs.

Associate:

Dated:    12 March 2018