FEDERAL COURT OF AUSTRALIA

ABG16 v Minister for Immigration and Border Protection [2018] FCA 369

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application filed 16 February 2018 is granted and the appellant has leave to rely on the transcript of the Tribunal’s hearing.

2.    Leave is granted to the appellant to rely on grounds 1, 2 and 4 of his amended notice of appeal.

3.    Leave to rely on ground 3 of his amended notice of appeal is refused.

4.    The appeal is dismissed, with costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the judgment and orders of the Federal Circuit Court of Australia given and made on 6 September 2017, which dismissed the appellant’s application for judicial review to that Court, with costs.

2    By its decision made on 3 December 2015, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) not to grant the appellant a Protection (Class XA) visa, finding that the appellant did not satisfy the criteria set out in either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

The appellant’s claims

3    The appellant, through his migration agent, submitted to the Tribunal that he had a well-founded fear of persecution on the basis of his real and/or imputed political opinion due to his involvement with the Bangladesh Nationalist Party (BNP), his father’s role with the BNP, his subsequent association with his father and the fabricated claims against his name (suspected to be made by Awami League members). He also submitted to the Tribunal that he had a well-founded fear of persecution as a member of a particular social group, being “individuals who have held information (the witness of corruption) adverse to the interests of the Awami League/political parties in Bangladesh.” It was submitted that as a BNP supporter the appellant would be compelled to bring to light the political harassment that he had suffered at the hands of the Awami League. The appellant’s intention was to increase the BNP support base and expose the activities of Awami League members. The appellant submitted to the Tribunal he had witnessed assault, corruption and intimidation by Awami League supporters in the Bogara District of Bangladesh and therefore the Tribunal should find that the appellant had a well-founded fear of persecution on the basis of his membership of that particular social group.

The findings of the Tribunal

4    At [48], the Tribunal found that the appellant was not a credible witness. It did not accept as true any of his claims of involvement by him or his father in the BNP, or of either of them fearing any harm or being harmed as a consequence. The Tribunal did not accept that the appellant was from a wealthy landowning or land renting family and considered that claim also to be fabricated. The Tribunal found that little weight could be placed on anything that the appellant had claimed as to why he may have left from Bangladesh or feared return.

5    The Tribunal, at [49]-[50], was prepared to accept that the appellant was a citizen of Bangladesh and that he departed Bangladesh in the hope of finding work and to provide money for his family and, it seemed, his sister’s wedding. Initially the plan was that he would find work in Malaysia. This, for whatever reason, did not eventuate and the appellant then had an opportunity to travel illegally to Australia. The Tribunal did not accept any of his other claims as true.

6    At [51], the Tribunal said that it followed that it did not accept certain documents from the BNP, ostensibly dated 7 March 2013, were genuine. The Tribunal had earlier referred to those documents at [38] of its reasons.

The judicial review proceedings in the Federal Circuit Court

7    The grounds of the application to the Federal Circuit Court were as follows:

1.    The Tribunal made a jurisdictional error by failing to take into account a piece of evidence.

Particulars

a.    The Tribunal received a post-hearing submission dated 12 November 2015 from the applicant’s representative.

b.    The submission attached a newspaper article dated 16 September 2015 confirming the identity of the person who signed the two BNP certificates submitted by the applicant and referred to by the Tribunal at paragraph 38 of its decision.

c.    The Tribunal failed to consider the significance of the newspaper article either in relation to the genuineness of the two BNP certificates or otherwise in support of the applicant’s claims.

8    The primary judge first considered what the appellant submitted from the bar table. Then, in relation to the ground of the judicial review application, the primary judge said that the Tribunal expressly made reference to the submissions that included the newspaper article. It was not necessary for the Tribunal to refer to every piece of evidence before it. It was a matter for the Tribunal to determine what weight to give to the evidence. The Tribunal made express reference to the BNP certificates and decided to give no weight to the same, given the adverse credibility findings made by the Tribunal of the appellant. It was not apparent how the newspaper article could, in any way, have overcome those adverse credibility findings, and the article was not capable of verifying the authenticity of the two BNP certificates. It was not necessary for the Tribunal to expressly refer to the newspaper article. No jurisdictional error as alleged was made out.

The appeal to this Court

9    An appeal to this Court was filed on 28 September 2017. It is not necessary to set out those grounds as the appellant filed, on 16 February 2018, a proposed amended notice of appeal which entirely replaced the original notice of appeal.

10    Those grounds were as follows:

1.    The Tribunal failed to perform its statutory function according to law in that it failed to properly consider an integer of the Appellant’s claim that he and his father were BNP members, by ignoring corroborating evidence in a newspaper article provided to the Tribunal post-hearing, which was the subject of oral submissions during the hearing, and the Federal Circuit Court erred in not so finding.

2.    The Tribunal failed to perform its statutory function according to law in that it failed to properly consider the Appellant's claim that he was a member of a social group of people who had witnessed corruption, and the Federal Circuit Court erred in not so finding.

3.    The decision of the Tribunal was affected by procedural unfairness in the form of apprehended bias.

4.    The Federal Circuit Court erred by failing to give adequate reasons, giving rise to procedural unfairness or a constructive failure to exercise jurisdiction.

11    In support, primarily, of ground 3, the appellant, by interlocutory application filed on 16 February 2018, sought to rely on the transcript of the Tribunal’s hearing which was not adduced in the hearing before the primary judge. It was submitted that the appellant was largely self-represented below, was unaware of the bias argument available to him below, or that such an argument would require evidence by way of transcript of the Tribunal hearing.

The evidence

12    I admitted provisionally the affidavit of Emily Rutherford affirmed 15 February 2018, exhibiting the transcript of the Tribunal hearing, which was not adduced in the proceeding below. I admit it on a final basis as counsel for the appellant relied on it in support of ground 1, in respect of which the appellant did not need leave to appeal. I note that counsel for the appellant said that a sound recording of the Tribunal hearing was also available but I note that I have not listened to it.

The parties’ submissions

13    In relation to the appellant’s proposed amended notice of appeal, the first respondent, the Minister, submitted that, as conceded by the appellant, he required leave to advance grounds not raised in the Federal Circuit Court in which he contended that the Tribunal made a jurisdictional error. The appellant submitted that ground 1 was in substance the subject of ground 1 of the application before the Federal Circuit Court. The appellant submitted that although grounds 2 and 3 were not argued below, leave to argue those grounds should be granted because it was expedient in the interests of justice to do so. The appellant was largely unrepresented below. The points had merit, it was submitted, and there was no real prejudice to the respondents in permitting the arguments to be agitated. Ground 4 arose logically for the first time on appeal.

Ground 1

14    The appellant submitted that the Tribunal ignored corroborating evidence in a newspaper article and thereby failed to perform its statutory function by not properly considering an integer of the appellant’s claim that he and his father were BNP members. The appellant referred to Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; 184 FCR 485 at [36] and [38] for the proposition that although it was open to the Tribunal to assess the credit of a visa applicant and then, in light of that assessment, consider what weight should be given to a corroborative witness statement, that did not mean that any evidence of corroboration could be rejected: it would depend on the nature, content and quality of the corroborative evidence and the Tribunal would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. The appellant referred also to Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34] in relation to a Tribunal not referring to a particular matter or particular evidence.

15    The appellant submitted that the Tribunal ignored the newspaper article and it was not referred to anywhere in the Tribunal’s reasons. The Tribunal’s methodology was to detail the evidence the Tribunal reviewed specifically, mostly using bold underlining to refer to each piece of documentary evidence. The Tribunal’s reasons at [27]-[46] rehearsed what happened at the hearing but omitted the appellant’s submissions about the newspaper article.

16    The BNP membership evidence was central to the appellant’s claims for protection. The newspaper article corroborated the appellant’s evidence that he and his father were BNP members in circumstances where the Tribunal’s decision was based largely on adverse credit findings. If the material had been considered, one could expect that it would be referred to, even if it were then rejected. The newspaper article was corroborative evidence that bore directly on the matters giving rise to the appellant’s claims for protection and the Tribunal’s assessment of his credibility.

17    The Minister submitted that the appellant’s argument could not succeed because, first, the newspaper article was not corroborative of the appellant’s protection claims and, secondly, as a matter of inference, the Court would not be satisfied that the Tribunal failed to consider the newspaper article.

18    As to the first point, the Minister submitted, the newspaper article did not support or corroborate the appellant’s claims that he was at risk due to his, or his father’s, association with the BNP. The appellant did not articulate how the article “bore directly” on the matters giving rise to the appellant’s protection claims. It was unclear how the content of the newspaper article might possibly have impacted on the Tribunal’s assessment of the veracity of the appellant’s claims, and its conclusion concerning the adverse credibility of the appellant.

19    As to the second point, the Minister submitted the Court should not infer in any event that the Tribunal failed to consider the newspaper article. The appellant contended for a wrong approach to drawing inferences from the absence of reference to a document in a Tribunal decision record. The correct approach was as stated by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. The Minister submitted that the absence of any reference by the Tribunal to the newspaper article would compel an inference that the Tribunal considered the article, but determined that it was not material. As found by the primary judge at [15], the Court should infer that the Tribunal was aware of and considered the article because it made express reference in its reasons to the other attached documents that accompanied the article under the cover of a letter dated 12 November 2015 sent to the Tribunal post-hearing.

Ground 2

20    The appellant submitted that in his protection claims before the delegate and the Tribunal he claimed to fear harm/mistreatment because of not only his political opinion as a BNP supporter and his father’s involvement in the BNP but also because of his membership of a particular social group, namely, individuals who held information (witnessing of corruption) adverse to the interests of the Awami League because he had knowledge of corruption and extortion activities of Awami League members in his area.

21    The appellant submitted that the social group claim was clearly made: his representatives made submissions to the Tribunal dated 23 September 2015. The appellant submitted to the Tribunal that he was a member of a particular social group of those who held information from witnessing corruption and were therefore adverse to the interests of the Awami League/political parties in Bangladesh. Specifically, the appellant claimed that he had “witnessed assault, corruption, and intimidation by Awami League Supporters in Bogara District”.

22    The Tribunal said nothing in its decision, the appellant submitted, about the appellant’s claimed fear as a member of a social group of those who had witnessed corruption. The Tribunal’s failure to consider the claim was a significant oversight amounting to jurisdictional error.

23    The Minister submitted that although the Tribunal did not expressly refer to the claim by the appellant that he was a member of a particular social group of individuals who had held information adverse to the interests of the Awami League/political parties, the Tribunal did not need to do so.

24    The Minister submitted that while the appellant’s agent’s letter identified the appellant as a member of the group, the reason the appellant feared harm as a member of the group was because he would be compelled to bring to light his harassment because he was a BNP supporter. However, the Tribunal rejected the appellant’s claims of involvement in the BNP, and rejected the claim that he had a fear of harm as a consequence. The Tribunal found the appellant not to be a credible witness and found that little weight could be placed on anything he had claimed as to why he may have left Bangladesh or feared return.

25    In light of the Tribunal’s factual findings, the Minister submitted, the appellant’s claim that as a BNP supporter he would be compelled to bring to light political harassment he had suffered by the Awami League and that his intention was to expose the activities of the Awami League, was subsumed in findings of greater generality. The factual basis of the claims having been rejected, there was no error in the Tribunal not making reference to the particular social group claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47].

Ground 3

26    The appellant submitted that the conduct of the Tribunal member at the hearing on 12 November 2015 gave rise to a reasonable apprehension of bias. The appellant submitted the Tribunal member expressed his disbelief of the appellant early in the hearing and revealed a concluded mind as to his credibility, before all evidence had been received. Reference was made to pages 7-9, 13 and 16 of the transcript of the hearing. It was also submitted that the Tribunal’s “disinterest” in considering all the evidence and claims, as demonstrated in relation to grounds 1 and 2, reinforced the impression to a reasonable bystander that the Tribunal had made up its mind that the appellant had no credit and did not bring a fair and impartial mind to the decision, before hearing and considering all the evidence. The appellant submitted that the tone of the Tribunal’s voice during the hearing, which conveyed incredulity, further reinforced a reasonable apprehension of bias. Counsel for the appellant did not put that the appellant’s change of claims could not found an adverse credibility finding but, as I understood it, put that emphatically rejecting the claims was such as to show a closed mind as a matter of procedural fairness.

27    The Minister submitted that it was not indicative of apparent bias for a Tribunal member to express concerns with parts of the oral evidence given to it by a review applicant. Having regard to the transcript, the Tribunal member expressed disbelief in a passage of evidence given by the appellant. It was not prejudgment, and it did not give rise to a reasonable apprehension of prejudgment, for the Tribunal member to express disbelief in respect of evidence given. To the contrary, the approach of questioning (where necessary) parts of the appellant’s testimony provided the appellant with an opportunity to address the Tribunal’s concerns.

Ground 4

28    The appellant referred to COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 and submitted that the Federal Circuit Court, after a cursory analysis of the Tribunal’s reasons, found that the Tribunal had complied with its statutory obligations in the conduct of the review. The Federal Circuit Court found that it was apparent that the Tribunal expressly made reference to the submissions that included the newspaper article and that the article could not have made any difference. Although the Tribunal had referred to the post-hearing submission, it did not refer to the newspaper article attached to the submissions or the contents or relevance of that article. The Federal Circuit Court found that the Tribunal “set out the applicant’s claims and evidence” but the Federal Circuit Court did not adequately set out those claims or the evidence and overlooked or omitted to mention that the appellant had made the social group claim and that the Tribunal had omitted its consideration from the Tribunal’s reasons.

29    The Minister submitted that whether a judge’s reasons in a particular case were inadequate would depend on the circumstances of the case. Importantly, the primary judge was considering an application for judicial review of the decision of the Tribunal which did not in this case necessitate the making of factual findings by the primary judge. The Minister referred to SZKLO v Minister for Immigration and Citizenship [2008] FCA 735; 247 ALR 582 at [23] to the effect that there is a fundamental distinction between the responsibilities of a trial judge entrusted with the function of making findings of fact and the responsibilities of a judge conducting judicial review.

30    The Minister submitted that it should also be taken into account that the reasons for judgment of the primary judge were given ex tempore. The primary judge’s reasons, whilst brief, were adequate. They explained the basis of the primary judge’s reasoning in rejecting the appellant’s contention that the Tribunal failed to take into account the newspaper article. The reasoning was that, first, the Tribunal had expressly made reference to the post-hearing submission attaching the article and, secondly, that it was not apparent how the newspaper article could in any way have overcome the adverse credibility findings, or verify the authenticity of the BNP certificates. The findings were open to the primary judge. They did not overlook or fail to address or indicate any misapprehension in respect of any argument that was advanced to the Court by the appellant. The reference by the primary judge to the Tribunal setting out the appellant’s “claims and evidence” without detailing those claims was not demonstrative of a failure by the primary judge to exercise the Court’s jurisdiction. The primary judge did not overlook or omit to mention the appellant’s social group claim and the Tribunal’s lack of consideration of the claim. The circumstances were that no argument was put to the primary judge by the appellant that the Tribunal had failed to consider a claim advanced by him.

Consideration

Ground 1

31    The newspaper article was put forward to the Tribunal as confirming the identity of the person whose name appeared on each of the BNP certificates by showing that the name on each of the certificates was the name of the person referred to in the newspaper article as having been arrested and of being president of the Dupchanchia BNP.

32    In my opinion, it was not necessary to the exercise of its jurisdiction for the Tribunal to refer to the newspaper article in reaching its conclusion, at [51], that the certificates were not genuine. The newspaper article was insufficiently material. It could do no more than show that the name on each of the certificates coincided with the name in the newspaper article of the person who had been arrested, some two and a half years later, as president of a unit of the BNP. The identity of Mr Hamid was not significant and neither was the balance of the newspaper article referring to his arrest and to the allegations against him. It had too slight a bearing on the issue of the Tribunal’s findings that the appellant was not a credible witness. I would not infer that the Tribunal failed to have regard to the newspaper article and thereby made a jurisdictional error. In circumstances where the Tribunal, at [29], referred to other documents provided with the post-hearing submission of 12 November 2015, I would infer that the Tribunal did not regard the newspaper article as material.

33    I do not accept the submission at [15] above, put on behalf of the appellant, that anything is to be derived from the format of the Tribunal’s reasons. There was no uniform practice of underlining or putting in bold font documents that had been taken into account, as shown by [29] of the Tribunal’s reasons which referred to the post-hearing submission.

34    Ground 1 has not been made out.

Ground 2

35    The appellant stated in his statutory declaration made on 17 May 2013 that he feared he would be harmed or mistreated because of his membership of a particular social group, being “individuals who have held information (the witnessing of corruption) adverse to the interests of the Awami League in Bangladesh” and that he had knowledge of the corruption and extortion of Awami League members in his local area. However, the issue is whether, in light of the Tribunal’s findings, it should be inferred that the Tribunal failed to deal with this claim. Put differently, the question is whether this claim survived the Tribunal’s findings that the appellant’s claims of involvement by him or his father in the BNP, or of either of them fearing any harm or being harmed as a consequence, were not true: see the Tribunal’s finding at [48].

36    As a matter of background, the delegate found, at AB93, that the information provided by the appellant implied that he would have information adverse to the interests of the Awami League through his BNP activities. The delegate said there was no indication that the appellant could have obtained that information elsewhere and reasoned that as she, the delegate, had not accepted the appellant’s (or his father’s) claimed involvement in the BNP in any capacity she further found that he did not hold information adverse to the interests of the Awami League in Bangladesh. The reasoning at that point was that as the appellant would not be part of the claimed particular social group it was unnecessary to determine if “individuals who have held information adverse to the interests of the AL in Bangladesh” constituted a particular social group.

37    It also seems clear that in the submissions dated 23 September 2015 to the Tribunal and made on behalf of the appellant by his migration agent, the membership of a particular social group claim was put on the basis that: “As a BNP supporter the Applicant will be compelled to bring to light the political harassment that he has suffered at the hands of the Awami League. The Applicant’s intention is to increase the BNP support base and expose the activities of Awami League members.”

38    I accept that the character of the appellant’s claims is one for this Court to decide. The point was not raised before the primary judge and I do not therefore have the benefit of the primary judge’s findings on this issue.

39    In my opinion, there was no jurisdictional error in the Tribunal proceeding on the basis that it was through the appellant’s BNP activities that he claimed to have information adverse to the interests of the Awami League. In so concluding, I have taken into account not only [97] of the submissions dated 23 September 2015 to the Tribunal on behalf of the appellant by his migration agent, but also [99] of that submission. However in characterising the claims I have taken into account the entirety of what was put by the appellant and on his behalf. I include what was said in the course of the hearing before the Tribunal and also what was said in the post-hearing submission of 12 November 2015 as to politically motivated arrests.

40    In my opinion, as explained by the Full Court in Applicant WAEE at [47], it was unnecessary for the Tribunal to make a finding on the claim that the appellant had a well-founded fear of persecution on the basis of his membership of the particular social group because there was a factual premise upon which the contention rested which had been rejected. That factual premise was that either he or his father was a BNP member or supporter. It was as a claimed member or supporter of the BNP that the appellant claimed he suffered political harassment and witnessed assault, corruption and intimidation by Awami League supporters and that claim did not survive the rejection by the Tribunal of any of his claims of involvement by him or is father in the BNP or of either of them fearing any harm or being harmed as a consequence. In my view there was no discrete claim or evidence as to the appellant’s membership of the claimed particular social group.

41    Ground 2 is of sufficient substance that it is in the interests of justice to grant leave to raise the ground, there being no prejudice claimed by the Minister if leave were granted. However, ground 2 has not been made out.

Ground 3

42    As I have already indicated, I do not regard it as appropriate in the present circumstances for this Court to listen to a recording of a Tribunal hearing where the primary judge was not asked to do so. Further, in the present circumstances, I do not regard it as appropriate to raise for the first time in this Court a claim of apprehended bias on the part of the Tribunal. In so concluding I take into account that the Minister did not rely on any evidentiary prejudice in this respect.

43    The circumstances to which I have referred are that the appellant and the appellant’s migration agent were present at the hearing in the Tribunal. Nothing was said at the time as to the unfairness of any comments by the Tribunal or any apprehension of bias on the part of the Tribunal. The point was not raised in the appellant’s post-hearing submission dated 12 November 2015, made by the appellant’s migration agent who was present at the hearing.

44    It was not a ground taken before the primary judge in circumstances where the application for judicial review was drafted by the present appellant’s then solicitor, from the same firm as had been representing the appellant before the Tribunal. I do not accept that the short time limits for filing such an application is a sufficient explanation, even though counsel for the appellant submitted that part of the claim of reasonable apprehension of bias on the part of the Tribunal included the matters raised in grounds 1 and 2. Being treated unfairly in the course of a hearing is, in my opinion, something which is immediately apparent, even to an unrepresented party.

45    I have not omitted to notice that the appellant appeared in person before the primary judge.

46    I do not have the benefit of any findings of fact by the primary judge on this issue. I also note that I have rejected grounds 1 and 2 insofar as they might bear on the proposed apprehended bias ground. I add that nothing I was taken to in argument indicated that this proposed ground had substance or merit. Further, if the point had been taken before the primary judge a real question could well have arisen as to the withholding of discretionary relief on the ground of waiver: see Re Alley; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 64 ALR 6 and Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572.

47    I would refuse leave to the appellant to amend the notice of appeal in respect of this ground.

Ground 4

48    The ground before the primary judge was a simple one and the question then was whether the Tribunal failed to take into account the newspaper article. The “or otherwise” aspect of the single ground, as set out at [7] above, was not developed. It does not appear from the primary judge’s reasons that the appellant made oral submissions to him in support of the pleaded ground.

49    As I have said at [8] above, the reasons of the primary judge were that the Tribunal made no jurisdictional error in not giving weight to the claimed BNP certificates in light of its findings as to the appellant’s lack of credibility. Secondly, the primary judge said that it was not apparent how the newspaper article could have overcome those adverse credibility findings and the article was not capable of verifying the authenticity of the two BNP certificates.

50    I see no failure to give adequate reasons in this respect. It is not difficult to follow what the primary judge had in mind. The primary judge noted that the Tribunal had referred to some of the documents provided in the post-hearing submission. The primary judge also must be read as referring, although not by paragraph number, to [38] and [51] of the Tribunal’s reasons where the Tribunal considered the two BNP certificates but did not accept that those documents were genuine.

51    I note that I have already considered, in relation to ground 1, whether the Tribunal made a jurisdictional error in failing to consider the newspaper article.

52    Ground 4 is not made out.

Conclusion and orders

53    Although leave may be unnecessary in relation to ground 1 since in substance it was the ground raised before the primary judge, the appellant should have leave to rely on grounds 1, 2 and 4 of his amended notice of appeal. As I have said, ground 2 is of sufficient substance that it is in the interests of justice to grant leave, there being no prejudice claimed by the Minister if leave were granted. Ground 4 was not available before the primary judge as it concerns a claimed error by the primary judge to give adequate reasons for his decision. As I have said at [47] above, leave is refused to rely on ground 3.

54    The appeal is dismissed, with costs.

Associate:    

Dated:    19 March 2018