FEDERAL COURT OF AUSTRALIA

AYV16 v Minister for Immigration and Border Protection [2018] FCA 696

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

The appeal

1    This is an appeal from a decision of the Federal Circuit Court dated 18 October 2017. The Federal Circuit Court dismissed the application for judicial review of the decision of the (then) Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), to affirm the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a protection visa.

2    The appellant has sought to raise grounds of appeal that were not the subject of argument in the Federal Circuit Court. The appellant therefore requires leave to rely on the grounds set out in his notice of appeal. This leave is opposed by the Minister.

Background

3    The appellant arrived in Australia from Bangladesh as an unauthorised maritime arrival on 4 May 2013. The appellant claimed to be a Sunni Muslim from the province of Faridpur. He applied for a protection visa on 22 August 2013 and attended an interview with the relevant Department on 24 October 2014. At the time, the appellant was represented and his representative provided further information, being a birth certificate, to the Department on 13 November 2014.

4    The appellant claimed that he was a member of the Bangladesh political party, Jatiya, and that he was also a recruiter for that party. He claimed that the Awami League (AL) and the Bangladesh National Party (BNP) had become aware that the appellant had been conducting meetings. The AL and BNP confiscated his family’s farm, attempted to extort money from his business, destroyed a shop that he owned, beat him, slashed him with knives and threatened to kill him because of his political activities. The appellant also claimed that his mother had died after being stabbed in the stomach by AL members who had gone to their house searching for the appellant.

5    A delegate of the Minister’s refused the appellant’s visa application on 12 December 2014. The appellant applied for review of that decision in the Tribunal on 19 December 2014. He attended a hearing, assisted by an interpreter and represented by his migration agent, on 15 February 2016.

6    The Tribunal did not accept that the appellant’s claim to fear persecution in the event of his return to Bangladesh was genuine. The Tribunal found that there were discrepancies that were not insignificant, immaterial or peripheral and therefore considered that the appellant’s evidence in relation to his mother’s death, the confiscation of the family’s property and his involvement with the Jatiya Party was unreliable.

7    The Tribunal further considered that it was compelled to refuse to grant the protection visa because the appellant had provided a bogus document. Section 91WA of the Migration Act 1958 (Cth) (the Act) states:

Providing bogus documents or destroying identity documents

(1)    The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

(b)    the Minister is satisfied that the applicant:

(i)    has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)    has caused such documentary evidence to be destroyed or disposed of.

(2)    Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)    either:

(i)    provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)    has taken reasonable steps to provide such evidence.

(3)    For the purposes of this section, a person provides a document if the person provides, gives or presented the document or causes the document to be provided, given or presented.

The appellant had presented a birth certificate to the Tribunal. The Tribunal was satisfied that it was a bogus document within the definition in s 5(1) of the Act, and not a genuine record of the birth of the appellant, because of a number of defects in the document. The middle name and date of birth on the certificate also differ from those which he had provided at other various stages of his arrival and application process. The Tribunal considered that there was no reasonable explanation for providing the bogus birth certificate within the meaning of s 91WA(2).

8    The Tribunal therefore affirmed the decision to refuse to grant the appellant a protection visa on 5 April 2016.

Federal Circuit Court proceedings

9    The appellant sought judicial review of the Tribunal’s decision by filing an application to show cause in the Federal Circuit Court on 26 April 2016. The application did not plead any grounds of review and no grounds could be gleaned from the supporting affidavit. The appellant did not at any stage seek to amend his application to include grounds of review and he did not file written submissions. The matter was nonetheless heard on 18 October 2017.

10    The primary Judge concurred with the statement of Judge Neville in Gill v Minister for Immigration [2015] FCCA 2674 at [23] that:

I accept these submissions. Having accepted them, it would be more than sufficient to dismiss the application essentially on the basis that the respondents and the Court do not have a case to address, which is properly and/or adequately defined. It is a long-standing principle across all jurisdictions and all courts, irrespective that each party should have adequate notice of the case that will have to be at the trial of the hearing.

11    The primary Judge went on to provide additional reasons for dismissing the application for review, finding that the material before the Federal Circuit Court did not reveal any jurisdictional error on the part of the Tribunal.

12    In the Federal Circuit Court, the Minister drew the primary Judge’s attention to the fact that the Tribunal had appeared to be under a mistaken view as to the precise class of protection visa that was the subject of the appellant’s application and purported to consider the application as being for a temporary protection visa. The error related to legislation that had been passed which converted Protection (Class XA) visa applications into Temporary Protection (Class XD) visas where certain specified events had occurred, but those events had not occurred in this instance.

13    However, the primary Judge found that this was an immaterial error such that it had not affected the Tribunal’s decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384. In particular, there was no material difference between the criteria for Class XA and Class XD visas. The primary Judge did not consider that it was an error that would lead the Federal Circuit Court to conclude that the Tribunal had acted beyond power or outside of its jurisdiction.

14    Accordingly, the Federal Circuit Court dismissed the application by the appellant.

Grounds of appeal

15    The appellant has included four grounds of appeal in his notice of appeal, being:

1.    The Judge of the Federal Circuit Court in his honourable judgment delivered on the 18 October 2017 failed error law and relief under the judiciary Act. The Judge failed to find that the Administrate Appeals Tribunal (AAT) has not found any evidence in relation to my claims and thus its decision influences by sufficient doubt.

2.    Honourable Judge failed to hold that the Tribunal made an error of law when it did not take up and separately deal with the factual issues. The Tribunal failed to find low profile political activists are mostly persecuted because of their role for the party like Jatiyo Party. The Tribunal failed to understand the persecution until political killing in Bangladesh under present dictatorial role in Bangladesh. The Tribunal member concluded that I will not suffer from any harm if I go to Bangladesh, which is not feasible.

3.    I was denied procedural fairness, when the Tribunal member made opinion based on assumption and possibilities without proper investigation. The Tribunal failed to assess the current situation in Bangladesh where thousands of my party leaders AND worked are arrested and killed by so called crossfire and harassed by the autocratic present Awami League Government & the Authority. It is well established that independent report like Amnesty International Country Reports. Present circumstance very danger for me, the Tribunal undermine the danger, I will face if I am compelled to return to Bangladesh as returned asylum seeker. And also, I came by boat in Australia only protect my life.

4.    Besides, the Administrative Appeals Tribunal did not follow the proper procedure as required by the Act in arriving my protection visa merit review application. Thus, the procedures that were required by the act or regulations to be observed, in connection with the making of the decision were not observed.

(Errors in original.)

Consideration

16    The appellant did not file written submissions but appeared at the hearing on 16 May 2018, assisted by an interpreter, and made oral submissions.

17    At the hearing, the appellant reiterated his claim that the death certificate in relation to the appellant’s mother was genuine. The Minister responded that whether or not the death certificate of the appellant’s mother was genuine was not really in issue, as the Tribunal was required to dismiss the appellant’s application because it was satisfied that the birth certificate that the appellant had provided was a “bogus document” for the purposes of s 91WA of the Act. The appellant further submitted that he had attempted to give the Tribunal a genuine birth certificate, but that he was too late.

18    I explained that factual findings were for a matter for the Tribunal alone, that it was not for this Court to engage in merits review of the factual findings of the Tribunal, and that this Court was restricted to considering the legality of the Tribunal’s decision. The appellant’s claims in this respect do not demonstrate any jurisdictional error on the part of the Tribunal, or any appealable error on the part of the primary Judge.

19    The Minister submits that leave should not be granted for the appellant to rely on the fresh grounds and that the appeal should be dismissed for the following reasons:

    Leave should be refused in circumstances where a new argument on appeal would have been met by evidence if it had been raised earlier Water Board v Moustakas (1988) 180 CLR 491; SZTIZ v Minister for Immigration and Border Protection [2017] FCA 545; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424.

    The grounds of appeal raised by the appellant have insufficient prospects of success because at their highest merely express the appellant’s dissatisfaction with the findings of the Tribunal and seek that the Court undertake impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    Relevant authorities caution against the appellate court exercising what is in a practical sense original jurisdiction.

20    The test for whether the Court should exercise discretion to permit an appellant to rely on fresh grounds of appeal is set out in VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48], where it was held that it must be expedient in the interests of justice to grant such leave. Whether it is in the interests of justice to grant leave depends, inter alia, on the strength of the grounds on which the appellant seeks to rely: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21].

21    As to the Minister’s submission that the grounds of appeal have insufficient prospects of success to warrant the exercise of the discretion to grant leave to rely on them, I make the following comments:

    Ground 1 asserts that the primary Judge ought to have found that there was no evidence on which the Tribunal could determine the appellant’s claims. The record of the decision demonstrates that the Tribunal took into account the evidence provided by the parties at and subsequent to the hearing. There is therefore no merit to the appellant’s complaint that there was no evidence before the Tribunal.

    Ground 2 appears only to cavil with the findings of the Tribunal. It is an attempt to engage the Court in impermissible merits review.

    Ground 3 contends that the appellant was denied procedural fairness because of the way in which the Tribunal assessed the current situation in Bangladesh. In reality, by this ground the appellant is simply expressing disagreement with the conclusion of the Tribunal on this issue. Those findings were open to the Tribunal on the material before it, so there was no jurisdictional error. To the extent that the appellant intends to complain that the Tribunal failed to investigate certain matters relating to the situation in Bangladesh, I note that the Tribunal is not under a general duty to inquire.

    Ground 4 does not identify the alleged failures of the Tribunal to comply with the Act or the Migration Regulations 1994 (Cth), and thus does not identify any jurisdiction error. Without sufficient particularisation, the Minister is not informed of the case that he is required to meet.

22    In my view, the grounds of appeal sought to be relied on by the appellant are without sufficient prospects of success. It therefore it not expedient in the interests of justice to grant the appellant leave to rely on them.

23    The Minister directed further the Court to the comments of Perram J in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] that:

… s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and notice of contention when to do so will mean that this Court performs that trial court’s entire function. As a matter of substance, that is what s 476A appears to be aimed at preventing.

Those comments were referred to by Buchanan J in SXUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18] where his Honour stated:

… it must also be borne in mind that the proceeding in this Court is an appeal from the judgment of the FCCA. This Court does not sit at first instance to review decisions of [the Tribunal]; Parliament has directed that it may not do so (s 476A of the Migration Act 1958 (Cth)). The primary role of this Court, therefore, is to examine whether the appealable error was made by the FCCA, rather than to perform “the trial court’s entire function”…

24    With respect I agree with the statements of Perram and Buchanan JJ in this respect. I consider that these statements cautioning the Court against exercising what is effectively original jurisdiction are an additional reason to refuse leave in these circumstances, as permitting the appellant to rely on the fresh grounds of appeal would, in effect, result in this matter being an exercise of original and not appellate jurisdiction.

25    The appropriate order is that the appeal is dismissed with costs.

Associate:

Dated:    17 May 2018