FEDERAL COURT OF AUSTRALIA

AOG17 v Minister for Home Affairs [2018] FCA 1088

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused and the application is dismissed.

2.    The applicant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J

Introduction

1    This an application for leave to appeal from orders made by the Federal Circuit Court of Australia (FCC) on 1 February 2018. The FCC Judge dismissed a “show cause” application in relation to judicial review of a decision of the Administrative Appeals Tribunal pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Leave to appeal is required because such judgments are interlocutory: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2    The applicant is a male citizen of Bangladesh. He arrived in Australia on 23 November 2014 as the holder of a Subclass 600 Visitor visa which was valid until 24 December 2014. He applied for a Protection (Subclass 866) visa on 22 December 2014.

3    On 22 June 2015, a delegate of the Minister for Immigration and Border Protection sent a letter of invitation to the applicant to attend an interview, but he did not do so. Without the opportunity to test the credibility of the applicant’s claims and obtain substantiating detail from him, the delegate was unable to be satisfied that his claims to fear persecution in Bangladesh were well-founded and accordingly on 17 July 2015, the delegate refused to grant the visa.

4    On 11 August 2015, the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant attended a hearing before the Tribunal on 5 October 2016. The Tribunal affirmed the delegate’s decision and issued its decision record (or DR) on 17 January 2017.

5    The applicant’s claims to fear harm made in his visa application and statement of claims and documents lodged with the Tribunal in support of the claims are summarised at DR[12]-[15]. In brief his claims were: He is illiterate. He worked as a labourer until 1990 when he started his own business selling seasonal fruit and vegetables door to door and in local markets. He obtained a driver’s licence in 2000 and drove a passenger vehicle thereafter. He joined the Bangladesh National Party (BNP) as a general worker in 2005. The BNP was then in power. After the Awami League took power in December 2008 he participated in anti-Awami League activities. He was threatened on a daily basis and harassed by Awami League thugs because of work he did in support of the BNP such that he could not lead a normal life. The police confiscated his bus a few times every month and this affected his business. He was mistreated by Awami League activists and Bangladeshi authorities until he left the country. He was physically assaulted and a false politically motivated case was filed against him. He was attacked and tortured and experienced extreme trauma and was persecuted for his political beliefs. Because his life was at risk, he asked his sister, who lives in Australia, to help him obtain a visa to leave Bangladesh and save his life. He fears that if he returns to Bangladesh, where the situation for BNP workers has deteriorated, he will be targeted by the Awami League activists and the police and he will be harassed, persecuted, discriminated against, arrested and tortured. He will be punished in relation to the false case.

6    The Minister submits, and I accept, that in accordance with the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

FCC Proceedings

7    At J[14], the FCC Judge set out the grounds of the application for judicial review of the Tribunal’s decision filed in the FCC on 13 February 2017 as follows:

1.    The Administrative Appeals Tribunal’s decision affected by jurisdictional error.

Particulars:

The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.

2.    The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant’s evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s 425 of the Migration Act 1958 (Cth).

Particulars:

The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant’s inability to remember or recall various issues and the dates at the time of hearing.

8    The FCC Judge noted oral submissions made by the applicant that he had been disadvantaged before the Tribunal because he was not represented by a lawyer. The applicant submitted that, although he had had assistance from a friend and later a lawyer who died before the Tribunal hearing, he was disadvantaged because he could not produce further documents in support of his claims. His Honour found no indication in the Court Book filed in the proceedings in the FCC that the applicant had appointed a representative during the Tribunal proceedings but found that the applicant was not disadvantaged in any event because his problem before the Tribunal was not an absence of documents, but rather the quality of the documents that had been submitted before the hearing: J[17]-[18]. At J[19], the FCC Judge found that the Tribunal’s decision turned on fundamental and detailed adverse credibility conclusions which were open to it for the reasons that it gave and that there was no procedural unfairness before the Tribunal.

9    In relation to the first ground, the FCC Judge found that:

(1)    Contrary to the allegations made in the ground, the Tribunal clearly considered and rejected the applicant’s claims. His Honour found that the applicant’s complaints in this regard sought impermissible merits review: J[22];

(2)    To the extent that the applicant took issue with the Tribunal’s questioning, it was apparent that he again sought to take issue with the Tribunal’s rejection of his claims. His Honour noted that it was incumbent on the applicant to provide particulars and evidence (in the form of a transcript of the Tribunal hearing) to support his claims but he had not done so: J[23]; and

(3)    The applicant’s assertion that the Tribunal denied him procedural fairness was in fact a complaint that it made adverse credibility findings, again seeking impermissible merits review. His Honour found that the Tribunal had complied with its statutory obligations under s 425 and (to the extent that they arose) s 424A of the Migration Act: J[24].

10    In relation to the second ground, that the Tribunal breached s 425 by making adverse credibility findings “without evidence”, the primary judge found that this expressed disagreement with the Tribunal’s credibility findings and should therefore be seen as an attempt to “cavil with the merits of the Tribunal’s decision”. His Honour found that the Tribunal’s credibility findings were based on cogent reasoning and evidence identified at DR[17]-[50] and that those issues were discussed at the hearing in compliance with s 425. His Honour found that the Tribunal clearly considered the applicant’s claims and evidence and gave detailed reasons for why it did not accept his claim to a well-founded fear of persecution if he was returned to Bangladesh and that those findings were open to the Tribunal on the evidence before it and for the reasons that it gave: J[25]-[26].

Proposed Grounds of Appeal

11    The Minister submits, and I accept, that the draft notice of appeal contains grounds which are different from those raised in the FCC. Leave is therefore required to entertain the proposed grounds. The Minister further submits that leave to raise the grounds and leave to appeal should be refused because those grounds lack merit.

12    Further, although the first ground alleges error by the primary judge, the particulars to that ground and the other two grounds focus on the decision of the Tribunal in respects not raised before the primary judge. The grounds therefore cannot identify appealable error by the primary judge.

13    For reasons explained in DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 at [11], it is generally inappropriate for this Court to consider on appeal grounds which were not raised in the FCC both having regard to the nature of a rehearing on appeal and s 476 and s 476A of the Migration Act. However, the applicant is not represented in these proceedings and was not represented in the FCC. It is well settled that the Court may grant leave if some point is advanced on appeal that was not taken in the FCC but which clearly has merit and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

14    I infer from a number of the applicant’s submissions that he was not in a position to offer an explanation for the grounds being raised for the first time on appeal. He is illiterate; he says that the grounds were prepared with some legal assistance and by other people willing to help. The Minister does not assert that he would be prejudiced by leave being granted.

15    While the applicant has not provided a satisfactory reason for advancing new grounds on appeal, the issues of whether or not leave should be granted to the applicant to raise new grounds on appeal or be granted leave to appeal on those grounds turn on the Court’s assessment of the merit of the proposed grounds and the demands of justice in that context.

16    The draft notice of appeal is discursively written. It appears to contain three grounds accompanied by what may be regarded as particulars and submissions.

First proposed ground

17    The applicant’s first proposed ground is as follows (as written):

The primary judge erred by holding that the Respondents did not make jurisdictional error by failing to exercise jurisdiction. The Tribunal misunderstood the applicant’s evidence and as a result of the misapprehend the evidence the Tribunal formed an adverse concern on the applicant’s credibility.

18    There are then set out paragraphs A and B which I will address separately.

19    Paragraph A takes issue with the way the Tribunal dealt with a letter (Mayor’s letter) which the applicant had provided to it in support of his application. In paragraph “A”, the applicant says (as written):

A.    It should be noted that the letter only noted that the applicant is not involved against any social work and the applicant is not involved against any state work. It should be noted that sentence that ‘a person is not involved against any state work should not be equated with the criminal offence for which he is accused’. The Tribunal member misunderstood and misconceived the meaning of the term of ‘state work’ to the Bangladesh state or Bangladesh government. Further, it should be noted that the applicant was not convicted for any offence in Bangladesh at that time and as per the basic law of the land every person should be assumed as innocent until the guilt is proved beyond reasonable doubt. Since there is no conviction, it is reasonable to assume that the applicant’s character is good. Accordingly, it is respectfully submitted that either the Tribunal misunderstood the meaning of phrase of ‘state work’ or failed to understand the basic principle of criminal law that a person should be presumed as innocent until proved beyond reasonable doubt. It is further submitted that based on the misconception, the Tribunal formed an adverse credibility concern.

20    The Mayor’s letter, a copy of which is included in the Court Book, provides as follows (as written):

[name of upazila redacted] Municipality

[name of upazila redacted], [name of district redacted]

TESTIMONIAL

THIS IS TO CERTIFY THAT, MD [name redacted], THAT IS [same name redacted] MUNSI, FATHER,S NAME: MD [father’s name redacted], THAT IS [different father’s name redacted] MUNSI, VILL: [address redacted], +UPAZILA: [name of upazila redacted], DIST: [name of district redacted]. I KNOW HIM PERSONALY. HE IS A SON OF MD [father’s name redacted]. TWO PERSON TWO NAMES IS SAME PERSON. THEY ARE NOT INVOLVED AGINIST ANY SOCIAL AND STATE WORK. THEIR CHARACTER IS GOOD.

I WISH EVERY SUCCES OF HIS LIFE

MAYOR

[name of upazila redacted] MUNCIPALITY

[name of upazila redacted], [name of district redacted]

21    Through an interpreter, the applicant made the following oral submissions:

(1)    The Tribunal held it against him that he had waited until two days before his Visitor visa expired before he applied for his protection visa, but he is illiterate and did not know the process; he was not able to do it sooner.

(2)    He sought the Mayor’s letter in support of the fact that his name had changed, but it came back with the testimonial to his “good character”. He cannot explain that: the Municipality prepared the paperwork, not the applicant.

22    In relation the first matter raised in oral submissions, the Minister surmised that this referred to DR[47] and [48] in which the Tribunal noted that, having arrived in Australia on 23 November 2014, the applicant waited until 22 December 2014, two days before his Visitor visa expired, to apply for protection. It put to the applicant that if he left Bangladesh because his life was at risk, the Tribunal would expect him to have applied for protection as soon as possible after he arrived in Australia. The Tribunal did not accept as an adequate explanation that he did not know the processes or who to talk to and he needed to arrange accommodation. The Tribunal pointed out that the applicant has a sister and brother in law who live and work in Australia and who read and write English. It also did not accept his explanation that his sister was “busy with her pregnancy” because it held the view that his brother in law could have arranged for migration advice. While this is a somewhat hard view, it is one which was open to the Tribunal, in particular having regard to its general assessment of the applicant’s credit and I accept the Minister’s submission that this matter, also a new ground, has insufficient merit to allow it to be raised for the first time on appeal.

23    The Tribunal considered the Mayor’s letter at DR[38] as follows:

38.    The applicant has provided to the Tribunal a letter from the Mayor of [name of upazila redacted] Municipality. It is dated 2 August 2015. It states that the applicant is known to him personally and is also known as [name redacted] Munsi. It states that he is not involved “against any social and State work”. It states that he is of good character. This is inconsistent with him being charged with a serious offence or offences, breaching his bail and a warrant being issued for his arrest. When the Tribunal raised this as an issue with the applicant, he responded that the letter is in relation to his name change. His evidence to the Tribunal is that the name “Munsi” is a title. He does not use this title in his passport. His response does not address the issue raised by the Tribunal.

24    From DR[38] it may be observed that the Tribunal records that it raised with the applicant what appeared to it to be an inconsistency between the Mayor’s letter and the applicant’s claim that he was being persecuted by a false charge or charges for serious offences, breaching his bail and a warrant being issued for his arrest. Instead of proffering an explanation for why there was no inconsistency (for instance, by explaining the meaning of “aginist any social or state work” or the matter raised in the ground that he would be regarded as being of good character because he had not been convicted of anything), the applicant said that the letter related to his name change. The Tribunal correctly observed that this did not address the issue which it had raised with the applicant.

25    At DR[34]-[37], the Tribunal addresses a number of documents supplied to it by the applicant. The first was a “Complaint to the Police” in relation to an allegation that 18 people had attacked the complainant’s brother on 7 April 2014. The second was a “First Information Sheet” dated 8 April 2014 in relation to an incident involving 18 named people said to have occurred on 5 April 2014, the document was dated 8 April 2014 and it was issued on 7 April 2014. The third document was a Charge Sheet dated 30 June 2014 in relation to an assault on the policeman’s brother on 5 April 2014 by 18 people. One of the 18 people named in each document was [name redacted] Ali [age]. The applicant’s name is Md [name redacted][seven years greater age]. The Tribunal found that the applicant was not one of the eighteen people named. The fourth document was a “Court order” said to be made on 1 January 2010 and issued on 5 August 2015 on a reference from the police on 7 April 2014; it refers to the applicant and 17 “others” being granted bail but does not refer to the charges against them.

26    At DR[37], the Tribunal notes the discrepancies in the dates on which the incident is said to have occurred in the “Complaint to the Police” and the “First Information Sheet”, that the “Court order” was dated four years before the alleged incident occurred and that the applicant’s evidence was that charges were laid against him between 2011 and 2013. As a result the Tribunal raised its concerns with the applicant as to the authenticity of the documents and its concerns were not alleviated by his response that he did not “make” them, he just received them. That finding was open to the Tribunal.

27    It may well be true that the applicant sought the letter to address an issue concerning his name and the applicant is entitled to the hold the view that someone should be regarded as having “good character” if they have not been convicted of something (even if they have been charged). However, on its face, the Mayor’s letter is an affirmation of “good character” and the phrase “aginist any social or state work” is open to the interpretation that there is nothing of note against good character. The name on the “Complaint to the Police”, the “First Information Sheet” and the “Charge Sheet” does not appear in the Mayor’s letter. In the absence of a relevant explanation which satisfied its concerns, the Tribunal was entitled to understand the Mayor’s letter as being inconsistent with the applicant’s claims and the explanation that it was about a change of name to be unresponsive to that issue which it had raised with him. In those circumstances, this ground invites impermissible merit review of the applicant’s claims to protection.

28    This aspect of the first proposed ground has insufficient merit to warrant leave to raise it as a new ground on appeal.

29    Paragraph B of the first ground relates to two letters supplied to the Tribunal by the applicant in support of his claims concerning his involvement with the BNP. At DR[21]-[23] the Tribunal records the applicant’s evidence in relation to the nature and extent of his involvement with the BNP. The letters are addressed by the Tribunal at DR[24] and [26] as follows:

24.    The applicant has provided two documents to the Tribunal to support these claims. The first document is from the ‘Bangladesh Nationalist Youth Party, [name of upazila redacted] Municipality Wing’. It is undated. It states that ‘ward no.4 of [name of same upazila redacted] Municipality has been formed as per below mention’, sets out the names of office bearers and members and states that the applicant is the President. The second document is from the [name of same upazila redacted] Municipality Youth Party, District wing – [name of district redacted] and is dated 17 July 2014. It sets out the names of office bearers and members and states that the applicant is a member.

…

26.    The Tribunal raised as an issue with the applicant the inconsistencies in the two documents referred to in paragraph 24 above and its concerns in relation to the authenticity of the two documents. He responded that there were two organizations and he was a member of the larger organization and the President of the smaller organization. Whilst this is possible, the Tribunal is of the view that he would have mentioned in his visa application that he was the President of the smaller organization if that was the case. Further, if the second document was issued on 17 July 2014, the Tribunal would expect him to have lodged it with his visa application or provided it to the Department after lodging his visa application.

30    Paragraph B of the applicant’s first ground provides as follows (as written, emphasis in the original):

B    The Tribunal in during the hearing noted that the applicant had given two letters to the Tribunal. One letter dated 17 July 2014 which states that the applicant is a general member of the Bangladesh Nationalist Party Youth Party [name of upazila redacted] Municipality Wing. The second letter “dated 6 August 2015” which states that the applicant is a President of the Bangladesh Nationalist Party Youth Party [name of upazila redacted] Municipality Wing. The Tribunal raised following serious and significant credibility concerns

•    The two letters from the same organizations are inconsistent because one letter states that he was a general member and the other letter stated that he is a President. It is clear from looking into both the letters that the both these organizations functions in two different levels, unfortunately, the Tribunal failed to engage in active intellectual process to identify those. The letter dated 17 July 2014 (Court book 163) clearly stated that it was issued by the Bangladesh Nationality Party’s [name of upazila redacted] Municipality Youth Party of the [name of district redacted] wing where the applicant was an executive member. The member failed to understand that it was not a general member rather an executive member of the Committee. It should be noted that a general member of a party is different from an executive Member of the party. This is first misunderstanding of the Tribunal. The next one is the letter issued in 2014 was issued by District wing [same name of district redacted] where he was an executive member and the other letter (Court book 166) was issued by the Bangladesh Nationalist Party [name of same upazila redacted] Municipality Youth branch Ward 4 where he was the President. The Tribunal misunderstood the applicant’s claim which has a serious consequences on the applicant’s application in relation to credibility.

•    The Tribunal noted that since the second letter was issued on 06 August 2015 and therefore, formed a negative view on the documents and questions the authenticity of the document and the credibility of the applicant. The Tribunal completely misunderstood the document. Though it is a factual error but submit that it has seriously undermined the applicant’s credibility and therefore submit that it would amount to jurisdictional error. The reason is, the letter submitted to the Tribunal was a translation and the translation clearly noted that there was no date in the letter. It also noted that the signature of the author was illegible and the translation was done by Mr Biplob Chowdhury and he put the date of the translation he did. The Tribunal misunderstood that it was the date of the of the letter. Though the applicant who is an illiterate and an unrepresented person said that it was the date of the issue of the letter. However, the Tribunal member was very determined on the issues and raised serious credibility concerns and said that as per the letter you are a President in 2015 (see the hearing CD 2 at minutes 39.42). It should be noted that in her decision the Member avoid this which I assumed that she would have realized that she made a factual mistake during the hearing regarding the letter however, the recording of the hearing clearly indicates that the member raised it as a serious concern and questioned the credibility of the applicant despite the applicant’s explanation which confirms that the Tribunal would have conducted the hearing with a biased or negative mind based on the negative concerns it formed on the basis of incorrect and misapprehended evidence.

31    In relation to the first dot point, the applicant made oral submissions that he did not bring documents with him to Australia. He had to organise to receive them after he arrived and that is why the letter with the issue date of 17 July 2014 was provided after his application. Further, the lawyer assisting him died before the Tribunal hearing.

32    The Minister submitted that, contrary to the applicant’s contentions in the first dot point, the Tribunal considered it possible that the letters supplied to it were from a larger organisation of which the applicant was a member and a smaller organisation of which he was the President. Accordingly, it cannot be said that the Tribunal misunderstood the applicant’s claim. Rather, for reasons that were open to it, it was not satisfied of the applicant’s explanation to resolve its concerns raised by the inconsistencies in the documents and its doubts as to the documents’ authenticity. I accept the Minister’s submissions.

33    The applicant’s only oral submission in relation to the second dot point of paragraph B is that he is illiterate and he can only obtain documents through others.

34    In relation to the applicant’s submissions set out in the second dot point of paragraph B, I have considered the copies of the documents said to be the letters which appear in the Court Book. The document at page 163 is the second document referred to by the Tribunal which has a date of “17.07.14” and indicates at number 13 that there is a member with the applicant’s name. The document at page 166 is the first document referred to by the Tribunal; it is undated but is certified by the translator on “06/08/2015”. Both documents bear a stamp with the words “certified true copy of original” and the date “08 AUG 2015”.

35    I accept the Minister’s submissions that there is no reference in the Tribunal’s decision record to a document dated 6 August 2015. Contrary to the applicant’s submissions, the Tribunal found that it was the first letter that was undated and the second letter that was dated 17 July 2014. The applicant’s submissions set out in the second dot point of paragraph B appear to proceed on a factually incorrect basis.

36    I do not accept the Minister’s submission that the Tribunal placed no weight on the date of the second letter; it reasoned at DR[26] that if the letter had been in existence on 17 July 2014 it would have expected the applicant to have provided it to the Department with or after he made his visa application since it supported the applicant’s claims to membership of the BNP. In assessing the applicant’s credibility, it was open to the Tribunal to reason this way. It was also open to the Tribunal to reason that if the applicant had been President of the smaller organisation he would have mentioned it in his visa application.

37    As to the matters raised concerning what was said during the hearing, I accept the Minister’s submission that it was necessary for the applicant to provide evidence of those proceedings either by way of the CD referred to in the dot point or a transcript of those proceedings. Even if, as contended, the Tribunal member made references to 6 August 2015 in questioning, its findings do not rely on that date and do not reflect a misunderstanding of the documents on which the findings are based.

38    The aspects of the second proposed ground raised in paragraph B have insufficient merit to warrant leave to raise them on appeal.

The second proposed ground

39    The second proposed ground is as follows (as written):

The Tribunal failed to asses the integer of the applicant’s claim or relevant consideration related to the applicant’s claim for a protection visa.

First particular

40    The first particular to that ground is as follows (as written):

The applicant stated that his fear on the basis of extortion (See the Tribunal decision para 28, Court book 423). The applicant did not engage with the claim and simply disregarded on the basis that the applicant did not mention in his original application. It should be noted that the Tribunal has an obligation to consider, assess and engage with the claim raised before the Tribunal’s decision. In this particular instance, the failure of the Tribunal would amount to jurisdictional error.

41    It is useful to set out DR[27], [28] and [30]:

27.    In his visa application, the applicant claimed that the enmity between the AL [Awami League] activists/AL thugs and him prevented him from leading a normal life. He claimed that his physical freedom was “obstructed”, he was attacked and physically tortured and he experienced severe trauma. He claimed that he was mistreated by AL activists and the Bangladeshi authorities until he left Bangladesh. He claimed that a false politically motivated case was filed against him. He claimed that he was in a dangerous situation and his life was at risk so he asked his sister, who lives in Australia, to help him obtain a visa to leave Bangladesh to save his life.

28.    During the hearing, the applicant gave a significantly different version of events. The Tribunal asked him what problems he had with the AL because of his membership of the BNP. He responded that his local Member of Parliament was from the AL. He stated that the supporters of the AL were like terrorists. He stated that because he belonged to the BNP and supported the BNP they started asking him for money in 2012. He stated that he paid them a lot of money on three or four occasions. He stated that he paid a total of almost 10 lakhs taka. When asked why he paid them money, he responded that he had to pay them money to keep his business running and if he did not he could not run the business. He made no mention of these claims in his visa application.

…

30.    The Tribunal asked the applicant whether he had any other problems with the AL. He responded that they increased their demands. ·He stated that they filed a few more cases against him between 2011 and 2013 including false charges of robbery and political cases. He stated that he only filed one case against them. He stated that he went to Court in relation to some of these charges. He stated that as they increased their demands he got into a difficult position and lost his business. He stated that he stopped paying them money and they started threatening him including threats to kill him. He stated that he fled to Dhaka at the beginning of 2014. When asked how long he was in Dhaka, he responded until he came to Australia. He then stated that he was in Chittagong.

42    The applicant’s only oral submission was that when he went to different lawyers and other people for help, they wrote what they liked.

43    The Minister submitted that the fact that the claim to extortion was set out at DR[28] indicates that the Tribunal considered the claim. It was not necessary for the Tribunal to deal with the claim in detail because it was subsumed by the Tribunal’s more general finding at DR[54] that it did not accept that the applicant was a supporter or member of the BNP or its Student wing/Youth wing and that it therefore followed that the Tribunal did not accept any of his claims that flow from that. It did not accept that he was or is of adverse interest to the Awami League, the police, the Bangladeshi courts or any other Bangladeshi authority.

44    I accept the Minister’s submission. Having regard to the many inconsistencies identified in careful detail by the Tribunal in its consideration of the applicant’s claims from DR[17]-DR[50] the Tribunal found that the applicant was not a witness of truth and that he had fabricated his material claims for the purposes of obtaining a protection visa: DR[51].

45    Further, the Tribunal did engage with the claims made at DR[27]-[30]. It is plain that at the hearing, the applicant escalated the claims which he made in his application. For instance, after he had made the claim at DR[28], itself an escalation from the claims made in his visa application, the applicant was asked whether he had any other problems with the Awami League. At DR[30], he claimed that the Awami League increased their demands resulting in further serious charges being brought against him in 2011 and 2013, they demanded more money and he became in such a difficult position that he lost his business and fled to Dhaka in early 2014. At DR[31] the Tribunal noted that the residential details provided in his application indicated that he lived in the house that he had lived in since he was born until November 2014. At DR[32] the Tribunal found that bank statements for his business for the period from 1 January 2014 to 16 November 2014 indicated that his business was in operation during that period and his personal bank statements for the period 6 September 2012 to 18 November 2014 indicate regular monthly deposits until 2 November 2014; this was inconsistent with the claims that Awami League thugs prevented him from leading a normal life and that as a result of problems with the Awami League his business went broke. When this was put to him, his unsatisfactory response was that his problem was with the Awami League, not with his bank: DR[33].

46    In my view, the assertion that the Tribunal did not sufficiently engage with the extortion claim has insufficient merit to warrant leave to raise it on appeal.

Second particular

47    The second particular to the proposed second ground is as follows (as written):

The Tribunal failed to consider asses and engage with the applicant’s fear of harm on the basis of generalized violence, particularly under the Complementary Protection ground. The applicant noted in his statement that the law and order situation in Bangladesh has deteriorated to a great extent and further said that crimes are increasing every day. The applicant has then provided evidence of human rights situation in Bangladesh which noted that human rights are being seriously violated due to the persistence of extra judicial killing. In BOS15 v Minister for Immigration [2017] FCCA 745 (16 May 2017), the Court held that the Tribunal decision is infected by legal error because there was no meaningful engagement by the Assessor with the claimed risk of generalized violence for the purposes of the complementary protection assessment. Accordingly, in the present case, the failure of the Tribunal would amount to jurisdictional error.

48    The Minister’s written submissions were: There is no evidence in this matter of a claim by the applicant to fear harm on the basis of generalised violence in Bangladesh; his claims were to fear harm on the basis of imputed political opinion and involvement with the BNP. A generalised claim was a predicate of the FCC’s decision in BOS15 v Minister for Immigration and Border Protection [2017] FCCA 745. The Tribunal had no obligation to consider a claim which was not squarely raised. The Minister did not refer to any of the documents contained in the Court Book in making the “no evidence” assertion.

49    At the hearing the applicant submitted that if he is returned to Bangladesh, he will face persecution. He said that things have become worse since he left: even a Prime Minister from the BNP is in gaol and as an ordinary person he can expect no protection.

50    In the decision record, the Tribunal set out a summary of the applicant’s claims made in the statement attached to his visa application at DR[12]. They are (accurately) framed by reference to his affiliation with the BNP and imputed political opinion.

51    At DR[15], the Tribunal noted that the applicant had lodged with it an “undated statement in which he claims that he did not receive the letter dated 22 June 2015 from the Department inviting him to attend an interview as he had changed address” together with the documents referred to previously in these reasons and “a large volume of county information on Bangladesh” (as written).

52    At DR[16], the Tribunal addresses the evidence concerning the applicant’s nationality. At DR[17]-[49], the Tribunal considers the specific claims made to protection on the basis of affiliation with the BNP having regard to the statement of claims, the documentary evidence provided by the applicant referred to previously (not being country information) and claims made at the hearing.

53    At DR[50], the Tribunal made its only other reference to the country information provided by the applicant:

50.    The Tribunal has had regard to the large volume of country information provided by the applicant. The Tribunal has also had regard to the policy guidelines prepared by the Department and the relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

54    The Tribunal then made its finding in relation to Convention based claims that the applicant was being targeted by Awami League activists and thugs because of his affiliation with the BNP at DR[51]-[57]. It finds that the applicant is not a BNP supporter or member of the BNP and is not at a real risk of harm now or in the reasonably foreseeable future for that reason if he returns to Bangladesh, that he was not subject to the claimed charges or warrant, that he is not of interest to the Awami League, the Police or any authority in Bangladesh and that he was not injured in a family dispute.

55    The Tribunal then dealt with the applicant’s complementary protection claims at DR[58]-[61] as follows:

Does Australia have protection obligations to the applicant under the complementary protection criterion?

58.    The Tribunal has considered the applicant’s claims under complementary protection.

59.    The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

60.    Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

61.    Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

56    In the Court Book at pages 102-103 is an undated document headed “Additional Statement of Claims to be a Refugee” which is signed by the applicant; I take it to be the document referred to at DR[15]. I will refer to it as the “Additional Statement”. The Court Book also contains 230 pages of materials related to human rights abuses in Bangladesh which I take to be the country information referred to in the Additional Statement. None of that information is personal to the applicant; it comprises documents issued by Amnesty International, Human Rights Watch and Odhikar

57    At the hearing, the Court drew the parties’ attention to the final two paragraphs of the Additional Statement which provide as follows:

By this additional statement I further tried to give some additional evidences and as attachment you will find the documents I wish to submit to the DIBP to consider my case. Furthermore, this application consist of some country information from different sources which may help you to decide the actual human rights situation in Bangladesh. With extra judicial killing including cross fire, torture to the people with different political view, killing in custody of different governmental law enforcing agency is a very common phenomenon now in Bangladesh.

I request the Tribunal Member to give me the opportunity to give oral evidences in person and while deciding my case please consider my individual circumstances that caused my fear for persecution rather than relying on average country information.

58    The Minister’s representative submitted that:

(1)    Although the Additional Statement refers to extra-judicial killings, cross-fire and killings in custody, the applicant made no claim that he was at risk of these. The applicant asked for his personal situation to be considered, not “average country information”.

(2)    He did claim to be at risk of torture for his political opinion, but the Tribunal dealt with those claims.

(3)    At DR[50], the Tribunal stated that it had had regard to the “large volume of country information provided by the applicant” as well as relevant country information prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.

The Minister submitted that the Tribunal properly understood the applicant’s claims, including claims to complementary protection, to have been framed by reference to his affiliation with the BNP and imputed political opinion, not claims to fear harm from generalised violence.

59    The relevant question is whether the second particular raises an arguable case that a claim to fear harm based on generalised violence in Bangladesh was either apparent or sufficiently raised on the face of the materials provided to the Tribunal and whether leave should be granted for this to be raised as a new ground.

60    The Tribunal did not perceive a claim to complementary protection based on generalised violence in Bangladesh to have been raised. It is plain from DR[59] that the Tribunal understood the applicant’s claims under both s 36(2)(a) and s 36(2)(aa) of the Migration Act to be based on his affiliation with the BNP and imputed political opinion. There is nothing in the decision record which suggests that the Tribunal invited the applicant to address the Tribunal member in relation to such a claim. This is in sharp contrast to the detailed examination of his specific claims. Paragraph 50 of the decision record occurs in the part of the record which deals with Convention based claims.

61    There is ambiguity in the “Additional Statement”: its heading indicates that it relates to additional claims and it is accompanied by 230 pages of country information concerning alleged human rights abuses; however the final paragraph asks the Tribunal to consider his particular circumstances, not “average country information”. The applicant did not specify in that paragraph what his “particular circumstances” were over and above his claims to fear harm based on his affiliation with the BNP.

62    The applicant has not identified any basis on which he might be subjected to any of the abuses referred to in the penultimate paragraph of the Additional Statement other than his claimed political affiliation with the BNP which was dealt with exhaustively by the Tribunal.

63    While I accept that the applicant’s illiteracy is an impediment to the prosecution of his claims, at the hearing of his application for leave to appeal, his general explanation for the proposed grounds and the reason that they were not raised in the proceedings in the Federal Circuit Court is that they were formulated by other people. When he was offered the opportunity to explain this particular of the second ground, he did not seek to press it otherwise than in terms of his claim to affiliation with the BNP. He has not claimed that he attempted to raise a claim to fear harm from generalised violence at the Tribunal hearing and it is not apparent from the otherwise careful decision record that he sought to do so.

64    I therefore accept the Minister’s submissions made at the hearing. I am not persuaded that justice demands that leave be granted to the applicant to raise an argument for the first time on appeal that the Tribunal’s process involved jurisdictional error because it ignored a claim made in the Additional Statement that the applicant claimed to fear harm because of generalised violence in Bangladesh. I am not satisfied that this aspect of ground 2 has sufficient merit to warrant leave for its consideration on appeal.

The third proposed ground

65    The third proposed ground of appeal provides as follows (as written, emphasis in original):

The Tribunal failed to comply with s424(A) or s 424 (AA) of the Act in respect of information that it considered would be there reason or part of the reason for affirming the decision under review. The Tribunal took into account information that had been given by the Appellant orally to the Minister’s Department in determining whether the Appellant was a truthful witness. That information was not put to the Appellant in accordance with s424 (A) or 424 (AA) of the Act. The Tribunal raised concerns which seriously undermined the credibility of the appellant on the basis of ‘information’ which should have been put formerly under section 424 (a) or Section 424 (aa) to put on notice to the applicant that such information would be the reason or part of the reason for affirming the decision under review and the applicant should have been advised that he can either orally comment or request additionally time to respond in writing.

Though the Tribunal raised concern under Section 424 a or 424 aa (though the Tribunal failed to identify the sections which is relevant to the applicant’s case) but failed to afford reasonable and sufficient procedural fairness to the applicant. During the hearing at Minutes 21-25 (CD 2), the Tribunal said the following: ‘I have information before me that would be reason or part of the reason for affirm the decision made by the Department. This information is important because it could lead to the conclusion that you are not a refugee or a you are no one for complementary Protection. If I were to come to the conclusion that I will have to male the same decision as the Department. I am going to tell you what is the information is and you will have an opportunity to comment on or respond to that information. You are not obliged to do so now and you can ask additional time to do so. If you ask additional time I will consider whether I should adjourn the hearing to give additional time’.

After explaining such information, the Tribunal then said “ would you like to make a comment or respond now?.”

It is submitted that the Tribunal failed in obligation give procedural fairness to the applicant when putting information to the applicant as required by law. It should be noted that the applicant is an unrepresented applicant and therefore, the Tribunal has an obligation to clearly explain to the applicant regarding the procedures to respond or comment on. It should be noted that comment is different from respond. The Tribunal failed clearly advised him that he can respond to the concerns raised by the Tribunal in writing after the hearing. Due to the failure of the Tribunal to clearly advise the applicant that he can respond to the Tribunal later in writing, the applicant was deprived the opportunity to respond in writing, though the commented orally during the hearing. Though the Tribunal said that the applicant can take additional time to do so and said that that the Tribunal would consider adjourn the hearing on the basis of reasonableness. However, at any point of time the Tribunal did not advise the applicant that the applicant could respond to the Tribunal in writing after the hearing for the concerns raised by the Tribunal. As a result of that, the applicant, an unrepresented applicant was not aware of that he could respond in writing after the hearing. It is submitted that this is a procedural error which would amount to jurisdictional error.

66    In oral submissions, the applicant said again that the ground was formulated by others. He also said that he does not have a copy of the CD referred to in the ground. However, he said it was not appropriate for the Tribunal to question him verbally, all of the questions which relate to a reason for affirming the delegate’s decision should have been put in writing.

67    The Minister submitted that this ground is misconceived on many bases:

(1)    The applicant gave no oral evidence to the Department since he did not attend the interview with the delegate. That was noted by the Tribunal at DR[14] and confirmed by the applicant at the hearing of the application for leave to appeal. On that basis, there can be no “information” drawn from a Departmental interview on the basis of which s 424AA or s 424A might operate.

(2)    There is no CD or transcript in evidence, however, based on the quoted material in the ground, there appears to have been compliance by the Tribunal with the requirements of s 424A by complying with s 424AA(1)(b) at the hearing, as permitted by s 424A(2A). In those circumstances, the Tribunal was not obliged to give written advice to the applicant of the credibility concerns that it had.

(3)    To the extent to which the Tribunal purported to comply with s 424AA (or s 424A) in circumstances that it was not required to, that does not indicate jurisdictional error by the Tribunal.

68    Sections 424AA and 424A provide as follows:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

69    I accept the Minister’s submissions. There was no interview with a delegate. The Tribunal’s concerns related to inconsistencies in the information and evidence which had been provided by the applicant in writing to the Department and to the Tribunal either in documentary format or in his evidence at the hearing with the Tribunal. Having regard to s 424A(3), there was little scope for the application of s 424A or s 424AA. Further, deductions drawn from inconsistencies in the information provided by the applicant is not “information”: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; HCA 26 at [18] where the majority of the High Court observed (citations omitted):

Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”

does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

70    Further:

(1)    To the extent the applicant sought to rely on a difference between “respond to” and “comment on”, the purported transcript in the ground indicates that the Tribunal member referred to both, reflecting language used in s 424AA(1)(b).

(2)    Section 424A(2A) permits the Tribunal to adopt a procedure whereby it advises an applicant at the hearing about information that it considers would be or would be part of a reason for affirming a delegate’s decision; the Tribunal is not obliged to give that notice in writing. Section 422B expressly provides that Div 4 of Pt 7 (in which s 424AA and s 424A fall) is an exhaustive statement of the natural justice hearing rule.

(3)    It is unclear to what issues the purported transcript of part of the CD of the Tribunal hearing set out in the ground relates. While it is a requirement of s 424AA that an applicant be given clear particulars of any information that the Tribunal considers would form all or part of a reason for affirming a decision of a delegate, there is no CD or transcript of the Tribunal hearing in evidence and accordingly the Court is forced to rely on the decision record. There is nothing in the decision record from which it might be inferred that the Tribunal failed to have appropriate regard to s 424AA and s 424A and it is apparent from the decision record that the Tribunal member gave the applicant a number of opportunities to respond to its concerns about what it considered to be inconsistencies in his evidence.

71    I am not satisfied that ground 3 has sufficient merit to warrant leave being given to the applicant to raise it on appeal.

Conclusion

72    For the foregoing reasons, leave to raise the grounds set out in the draft notice of appeal, being new grounds is refused and the application for leave to appeal is dismissed with costs.

Associate

Dated:    24 July 2018