FEDERAL COURT OF AUSTRALIA

AVC16 v Minister for Immigration and Border Protection [2018] FCA 1238

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed subject to paragraph 4 below.

2.    The orders of the Federal Circuit Court of Australia made on 15 February 2017 be set aside and substituted with orders that:

(a)    a writ of certiorari issue to quash the decision of the second respondent given on 22 March 2016 (case no. 1416499); and

(b)    a writ of mandamus issue directing the second respondent to re-hear and determine the applicant’s application for review according to law.

3.    The first respondent pay the appellant’s costs of and incidental to this appeal.

4.    In the event that the parties are unable to agree orders with respect to the appeal in so far as it relates to the order as to costs in the Federal Circuit Court of Australia:

(a)    on or before 4pm on Friday 31 August 2018, the appellant is to file and serve written submissions of no more than three pages in support of its appeal against the order as to costs in the Court below;

(b)    on or before 4pm on Friday 7 September 2018, the respondent is to file and serve any written submissions in response of no more than three pages; and

(c)    the question of costs in the Court below will be determined on the papers.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (the FCC) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 22 March 2016. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a protection visa. The appellant is a citizen of Bangladesh. He claimed to fear harm by reason of his involvement in the Bangladesh Nationalist Party (the BNP), as a result of attacks on him by supporters of a rival political party, and as a result of land dispute between his father and his uncle.

2    The sole issue raised by the amended notice of appeal is whether the primary judge should have held that the Tribunal was obliged in all of the circumstances to view video evidence sought to be adduced by the appellant to corroborate his claims to fear harm by reason of his involvement with the BNP and whether the Tribunal’s refusal to do so constituted a jurisdictional error.

2.    EVIDENCE

3    On the appeal, the appellant relied first upon the affidavit of Michael Devlin McCrudden, solicitor, affirmed on 15 December 2017 to which was annexed a transcript of the hearing before the Tribunal conducted on 4 January 2016. No issue was taken by the Minister as to the accuracy of that transcript although, as I later explain, the parties were not agreed as to the way in which certain passages of the transcript should be interpreted.

4    The appellant also relied upon his affidavit affirmed on 14 December 2017 to which he exhibited “the actual USB drive I attempted to provide to the Tribunal Member of the second respondent during my Tribunal hearing on 4 January 2016” (exhibit RH1 to the appellant’s affidavit). It was the appellant’s unchallenged evidence that:

14.    At the hearing Tribunal, I attempted to provide RH1 to the Tribunal Member because I understood that he did not believe that my life was in danger to Bangladesh because he had information which suggested that less prominent members of political parties in Bangladesh are not attacked by the authorities. RH1 showed that the authorities in Bangladesh do attack ordinary people who are not high-ranking political figures and I wanted the Tribunal Member to see that footage.

(Errors in the original)

5    None of this evidence was before the Federal Circuit Court. However, the Minister very appropriately did not object to its receipt in evidence on the appeal, save that statements in paragraphs 8, 9, 10, 11, and 13 of the appellant’s affidavit which purported to describe what the footage in the various video files on the USB drive depicted were received only as evidence of the appellant’s understanding of what those video files depicted.

3.    BACKGROUND

3.1    The application for a protection visa and decision of the delegate

6    The appellant arrived in Australia by boat on 28 March 2013 and applied for a protection visa in early July 2013. The Minister and, therefore, the Tribunal standing in the Minister’s shoes, may grant a visa only if satisfied that the prescribed criteria are met. Relevantly, subs 36(2(a)) of the Migration Act 1958 (Cth) (the Act) provides that a criterion for the grant of a protection visa is that the applicant is a person in respect of whom the Minister is satisfied that Australia has protection obligations because that person is a refugee as defined by subs 5H(1) of the Act (the Refugee Convention criterion). To meet that definition, the person must satisfy the Minister that, owing to a “well-founded fear of persecution” (as defined in s 5J) for a Refugee Convention reason including political opinion, the person is unable or unwilling to avail herself or himself of the protection of her or his country of nationality. In the alternative, under subs 36(2)(aa), the applicant must be a person in respect of whom the Minister is satisfied that Australia has complementary protection obligations by reason of a real risk that the applicant will suffer significant harm (the complementary protection criterion).

7    On 12 September 2014, the delegate refused to grant the appellant a protection visa.

8    I have not summarised the appellant’s claims in any detail because I have been mindful of the need to avoid details by reference to which the appellant’s identity might inadvertently be disclosed. It suffices to say that the appellant claimed to fear that he would be killed by members of the Awami League and security forces in Bangladesh because he had held a particular position within the Chhatra Dal (which is the student wing of the BNP) in his local area and because members of the Awami League, which is a rival political party, had tried to kill him in early 2012. He also claimed to fear harm as a result of a land dispute between his father and his uncle.

9    The delegate was satisfied that the appellant had previously been identified in his area as a supporter of the BNP and had been assaulted in an opportunistic attack by Awami League supporters. Further, given the evidence of ongoing violence in his home area, the delegate found that he “cannot discount the possibility that the applicant may be again identified as a BNP supporter and face similar opportunistic attacks in the future.” However the delegate found on balance that the appellant could relocate safely elsewhere in Bangladesh. The delegate also found that the appellant’s claims in relation to the land dispute with his uncle, and its consequences for him and his family, were not plausible.

3.2    The Tribunal’s decision

10    The appellant sought review of the delegate's decision before the Tribunal. He appeared at a hearing before the Tribunal with the assistance of his representative and an interpreter in Bengali and English on 4 January 2016.

11    In contrast to the Delegate, the Tribunal did not accept that the appellant had a well-founded fear of being persecuted for a Refugee Convention reason if he returns to Bangladesh, including in his home region, now or in the reasonable future and for this reason did not satisfy the criterion for a protection visa in subs 36(2)(a) of the Act. Nor did the Tribunal consider that the appellant had established a real risk that he would suffer significant harm so as to satisfy the alternative complementary protection criterion in subs 36(2)(aa). Given its conclusions, the Tribunal did not consider the question of whether the appellant could safely relocate, in contrast to the delegate.

12    For present purposes, it is relevant to concentrate upon the Tribunal’s reasons for rejecting the appellant’s claim to fear harm on the basis of his involvement in the BNP and for declining to view the videos proffered by the appellant.

13    First, in its reasons the Tribunal described an exchange with the appellant at the Tribunal hearing in which the Tribunal indicated that it may not accept the appellant’s claim to have been attacked by Awami League supporters because he was a BNP supporter. Although the Tribunal accepted that the appellant had been injured at some point, the Tribunal indicated that the Australian Department of Foreign Affairs and Trade (DFAT) “assessed that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of political violence on a day-to-day basis due to their political affiliations. It has said that opposition party members engaged in protest faced a low risk of being arrested” (Tribunal’s reasons at [37] and [48]). Rather the Tribunal put it to the appellant that only high profile BNP supporters may face a higher risk of political violence, and that his claimed position could not meet that description (Tribunal’s reasons at [38]). In response to the Tribunal’s views on this issue, the appellant stated that he wanted to show the member “a video regarding Bangladeshi current affairs” but instead of permitting him to do so, the member questioned the appellant about what he wanted to say. In the course of his responses, in my view the appellant explained the relevance of the video that he wished to show the member in line with his affidavit evidence before this Court: see below at [37]-[39].

14    Secondly, the Tribunal ultimately did not accept that the appellant was telling the truth about the problems which he claimed to have had as a result of his involvement in politics and, did not accept that he was attacked by Awami League supporters because he was a member of the BNP or held a position in the Chhatra Dal in his local area (Tribunal reasons at [48]). That notwithstanding, the Tribunal considered whether he would suffer a real risk of harm if his evidence as to the position which he held were accepted, finding that:

48. … Even accepting his evidence that [he held the position he claimed with the Chhatra Dal in his local area] from 2004 to 2012 as he has claimed, I do not accept, having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 37 above, that there is a real chance that he will be killed, attacked, arrested or otherwise persecuted for reasons of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future. …

15    The advice from DFAT referred to at [37], [47] and [48] of the Tribunal’s reasons is a DFAT Country Report – Bangladesh, 20 October 2014 (DFAT Country Report) at paragraph 3.55 which is cited in footnotes 5 and 10 of the Tribunal’s reasons.

3.3    The decision of the Federal Circuit Court

16    The appellant was unrepresented before the Federal Circuit Court. The amended notice of appeal does not cavil with the primary judge’s decision insofar as he rejected the grounds of review raised specifically in the application for judicial review. The appeal relates solely to the finding by the primary judge regarding the issue of “a video regarding Bangladesh [sic] current affairs which the Tribunal declined to view” (FCC reasons at [22]). The primary judge noted that this issue had been raised by the Minister consistently with his obligations as a model litigant.

17    The primary judge identified the relevant principle in the following passage:

25. … whether a failure to view a video tape constitutes jurisdictional error is answered by reference to those cases that have considered whether a failure to take into account evidence constitutes jurisdictional error. Although it is difficult to distil a precise formulation of the test from the decided cases [referring to Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67], the approach in these cases confirms that it remains the case that the failure to consider an item of evidence does not necessarily lead to the conclusion that the decision-maker committed jurisdictional error, but that jurisdictional error might be found if the evidence was probative and was central to the applicant’s claims.

18    However, the primary judge found that in the circumstances of this case, no obligation lay upon the Tribunal to review the video. Specifically, his Honour held that:

26. In the present case, there is no basis for a finding that the video was probative and central to the applicant’s claims such that the Tribunal was required to view it. Nor has the applicant put forward with clarity such a suggestion. It is apparent from [39] of the Tribunal’s decision that at the hearing, the applicant indicated that the video contained material about “Bangladeshi current affairs”. Although he was invited to do so, no explanation was given by the applicant as to how material on the video fitted into the applicant’s claims. The applicant gave no indication that the video contained material that was specific to the applicant’s claims or that it contained up to date country information. In these circumstances, there was no obligation on the Tribunal’s part to view the video.

3.4    The videos contained on the USB memory drive

19    The USB memory drive contained five video files which the appellant said he downloaded from YouTube less than six months before the Tribunal hearing on 4 January 2016. The evidence does not establish when the videos themselves were shot save that one of the files bears the date 5 May 2013.

20    The videos appear to depict live footage of beatings, shooting and other acts of violence by police in uniform against men and women in civilian dress. In one case, a video apparently produced by “Desh Rights” states that it “bears witness to Bangladeshi police authorities *Firing into unarmed crowds *Police beating and possibly killing unarmed protestors” and that it was taken in central Dhaka on 5 May 2013. The video depicts acts of extreme violence by policemen in riot gear against persons in civilian clothing apparently engaged in protest(s) in line with the video’s description. Another video on which the insignia “AP” appears throughout is entitled “Police clash with protestors calling for return of caretaker administration” and depicts police in helmets and carrying shields, as well as a brief shot of people not in any official government uniform, apparently beating fleeing protestors and firing at them. The third video appears to bear the insignia “CNN Live” at points and again shows police apparently beating unarmed protestors.

21    In a fourth video, the narrator to the footage explains that:

Bangladesh police and other law enforcement agencies were instructed by the Awami League Government to mercilessly suppress without hesitation by the people. As a result police in many places acted without provocation and incitement, indiscriminately open fire on protesters, killing and injuring men, women, children and elderly people.

Instead of using tear gas, rubber bullets, pepper spray or other methods of crowd control, police use live ammunition against civilian population overlooking national and international law. It is evident from television news reports that police assaulted the protesters with the intention to kill them or inflict serious injury. They even shot and killed captive protesters who were handcuffed and blindfolded.

Bangladesh was ruled by brutal autocratic and military regimes in past, but such brutality from police was never seen before. Many houses have been set on fire, businesses were ransacked, and thousands of people became homeless and impoverished overnight.

Law and order situation deteriorated quickly as the ruling party thugs and the police jointly carried out their attacks.

As a result of this violent state-sponsored terror, more than 170 people were killed across the country in courses of a week. More than 7000 were injured and about 3000 of them were injured with bullet wounds. Currently there are more than 40,000 supposed activists in state prisons. More than 5000 of them were arrested from recent protests.

22    The source and date of the fifth video which also depicts police shooting and beating protestors is not known.

4.    CONSIDERATION

4.1    Relevant principles

23    It is helpful first to summarise the relevant principles which guide the determination of whether the Tribunal fell into jurisdictional error in not having regard to the video evidence.

24    First, the function of the Tribunal is to conduct a review under subs 414(1) in accordance with the Act. In particular, s 425 of the Act requires that the Tribunal afford the appellant an opportunity to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. As Gaudron and Gummow JJ explained (addressing the equivalent provision in Part 5 of the Act) in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj) at [42], “it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced [by the appellant]”. A failure to do so constitutes a failure to conduct a review as required by the Act and therefore a failure to exercise jurisdiction: Bhardwaj at [43]-[44] (Gaudron and Gummow JJ (with whose reasons McHugh and Hayne JJ relevantly agreed in separate judgments)). Related to this, the Tribunal will fall into jurisdictional error if, among other things, it ignores relevant material in a way that affects the exercise of power or asks the wrong question: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[83] (McHugh, Gummow and Hayne JJ).

25    Secondly, the Tribunal is required to correctly construe and consider the claims (and their component integers) made by an applicant or which are apparent on the material before it: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) at [23]-[24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun):

42. … To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding…

26    These principles were considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE). In that case, the Full Court (at [45]) identified two elements as key to demonstrating whether a Tribunal has failed in the discharge of its statutory duty to conduct a review of the delegate’s decision, namely, “… [i]f the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material...”.

27    Thirdly, this does not mean that a failure to consider evidence may not also result in jurisdictional error, there being no bright line between a failure to consider a “claim” and a failure to consider a piece of evidence. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) with respect to the Tribunal’s task of determining whether the appellant would face a well-founded fear of persecution if returned to her or his country of nationality and therefore assessing what might happen to her or him if returned:

38. That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. … that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same…

28    Thus, as Robertson J explained in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), while the distinction between claims and evidence may be a useful tool of analysis, it is an error to approach the question of jurisdictional error by reference to fixed categories or formulas; rather what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error (SZRKT at [77] and [98]). Robertson J continued:

111. … it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112. As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

29    The approach of Robertson J has been expressly approved by the Full Court on a number of occasions: see in particular MZYTS at [46] (the Court); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [49]-[50] and [54] (the Court).

30    Fourthly, it also follows, as the Minister submits, that the Tribunal is not required to refer to every contention or piece of evidence in its reasons. For example, evidence may not have been referred to by the Tribunal because it was irrelevant, or a contention may not have been addressed because it was misconceived in relation to the persecution criteria: WAEE at [46] (the Court). Nor will the Tribunal necessarily fall into jurisdictional error even where it ignores relevant material depending upon the circumstances. As the Full Court recently held in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) in a passage on which the Minister here placed particular weight:

62. As Robertson J stated in [SZRKT] at [122] it is not always a jurisdictional error for the Tribunal in reviewing the rejection of a protection visa claim to ignore relevant material, including corroborative evidence. Rather, as his Honour observed at [112] by reference to the Full Court’s decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], whether the Tribunal is obliged to consider a document will depend on the circumstances of the case and the nature of the document. With specific reference to the situation where corroborative evidence is ignored, his Honour added that other relevant factors include:

(a)    the cogency of the evidentiary material; and

(b)    the place of that material in the assessment of the review applicant’s claims.

31    For example, while not alleged in this case, in some cases an applicant’s claims may be so discredited by comprehensive findings of dishonesty or untruthfulness as to negate allegedly corroborative material, that is, where the decision-maker exceptionally has found that “the well has been poisoned beyond redemption”: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (S20/2002) at [49] (McHugh and Gummow JJ). On the other hand, as Lee and Moore JJ held in WAIJ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 74:

27…. it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error [citing Yusuf at [82]-[85]].

(emphasis added)

(See also e.g. Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [37]-[38] (North and Lander JJ (with whose reasons Katzmann J agreed at [42])); BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 at [59] (Markovic J).)

32    Thus where an applicant’s credibility on certain issues is in doubt, but the Tribunal has made no irreparable findings of dishonesty, it is still required to have regard to any corroborative evidence before determining the credibility of the applicant’s claims. The Tribunal may only arrive at a determination that allegedly corroborating evidence is of no assistance in determining the applicant’s claims after considering the cogency and relevance of that evidence. As this is not a case where there has been any suggestion that the well was poisoned beyond redemption, the parties were agreed therefore that the question of whether the Tribunal fell into jurisdictional error ultimately turned upon the application of the principles in ARG15 and SZRKT, namely, whether having regard to the relevance and cogency of the information, the Tribunal was obliged to consider the video evidence.

4.2    Did the primary judge fall into error

33    For the reasons which follow, I consider that the Tribunal did fall into jurisdictional error in ignoring the corroborative evidence and thereby failed to complete its review function under the Act. For this reason, the appeal must be allowed.

34    First, it is unnecessary in this case to infer that no regard was had by the Tribunal to the videos on the USB drive: cf, e.g., MZYTS at [50] and [52] (the Court); ARG15 at [67] (the Court). The evidence establishes that the Tribunal declined to view the videos and to receive the USB drive in evidence.

35    Secondly, the Minister submits that the primary judge rightly held that the appellant failed to explain why the evidence was relevant to the assessment of his claims, despite being invited to do so, and therefore did not err in upholding the Tribunal’s decision. In this regard, I accept the Minister’s submissions that it was not inappropriate for the primary judge to rely upon Tribunal’s reasons for a description of events at the Tribunal hearing in circumstances where he did not have in evidence any transcript of that hearing, the original USB drive, or copies of the videos. However, this Court has in evidence the transcript of the hearing before the Tribunal, as well as the USB drive. The relevant part of the transcript records the following exchange between the member and the appellant towards the end of the hearing:

MEMBER: Well, [Mr Applicant], it’s only fair to say I have great difficulty in accepting you’re telling the truth. I have problems with your evidence, which we’ve discussed today. I may give greater weight to the problems I have with your evidence than I do to the documents you’ve produced. I accept that you have, at some stage, suffered some injuries, but I may not accept that you were attacked by Awami League supporters because you were a BNP supporter.

The Australian Department of Foreign Affairs and Trade assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested. It said they’re not living in fear of political violence on a day-to-day basis due to their political affiliations. It said that opposition party members engaged in protest face a low risk of being arrested. It said that members with higher profiles may face a higher risk. But, even if I were to accept your claims, it’s difficult to accept that you could be described as having a high profile.

The Department’s previously said that any person, for example, that held a position like assistant general secretary, or – or joint secretary within the Jubo Dal would not be regarded as high ranking or influential. And, you said that the only position you ever held was as [a specified position] of the Chatra Dal in your local area. Do you understand?

APPLICANT: Yes.

MEMBER: Is there anything you wanted to say about that?

APPLICANT: I want to show you a video regarding to the Bangladeshi current affairs.

MEMBER: Well, nobody has told me what – what it is you want to say, [Mr Applicant].

APPLICANT: As you said that there is no risk for the political members of – members in my country. The – the reason is a government. They see the news and from – they take the information. The government nominated channel never publishes and shows the news, you know, what is actually happen in my country. The people who are involved in politics, they don’t have any peaceful life.

MEMBER: Well, Mr – [Mr Applicant], just so we’re clear, the information that I’ve just referred to comes from the Australian Department of Foreign Affairs and Trade, not the Bangladeshi government. So they’re not just watching the government channel, whatever that is. There are plenty of private sources of information in Bangladesh. If you’ve got a video, I’m sure that video is publicly available.

APPLICANT: Yes.

MEMBER: So, what – what is it that you want to tell me in relation to the risk to you?

APPLICANT: My – my risk is I was involved in politics. For any reason – for any reason I don’t know yet if you send me to my country I have – for sure I have to die.

MEMBER: Why do you say that, [Mr Applicant]?

APPLICANT: Because it’s happening. Every day people are dying in my country. Police should be protected us. Those police who were there to save us, they kill us because – because of money. The – the people who practice opposition party, police comes and takes them and they kill them. It’s happening every day.

MEMBER: Well, on the evidence you’ve produced in connection to your application, and your representative has produced, that sort of thing is happening to activists, not to just ordinary people like yourself. You – you emphasised to me today you were only ever involved in your local area. You were only well-known in your local area.

(emphasis added)

36    Shortly thereafter, the following further exchange took place:

MEMBER: Was there anything else that you wanted to say to me in relation to your application before we close the hearing today?

APPLICANT: I just – I – I want to tell you that when you consider all the aspects, you consider my life’s situation and – and when you write your position please consider everything.

MEMBER: Okay. Thank you very much for coming in here today to give your evidence. And, that concludes the hearing…

…

APPLICANT: Then, please consider my – my life situation, my country’s current situation, and when in write your position please consider all those aspects.

MEMBER: I will. Thank you. Thank you, Interpreter.

…

37    I note that the summary of the relevant exchanges in the Tribunal’s reasons was detailed but did not refer to the fact that the appellant’s request to show the video to the Tribunal was directly in response to the question “Is there anything you wanted to say about that?”, referring to the DFAT advice. Further, the transcript reveals that the interpretation of the appellant’s oral evidence into English by the interpreter was awkwardly expressed, giving a different impression from the neatly expressed summary of the exchanges by the Tribunal in its reasons (by which I intend no criticism of the Tribunal).

38    The way in which the appellant’s oral evidence should be understood was a matter of contention. In resolving that issue, in my view these passages of the transcript must be read fairly having regard to the fact that the line of communication between the Tribunal and the applicant was imperfect, given some ambiguity in the Tribunal’s questioning and the apparently awkward interpretation of the appellant’s evidence by the interpreter. Bearing these matters in mind, it is apparent from the transcript that the appellant understood the proposition put to him by the Tribunal that he was not at risk because of his lower profile with the BNP and that he sought to counter that proposition by relying upon the videos as corroborating his evidence about the risk of harm to people in his situation who had been involved in the BNP. In particular, it is sufficiently clear from these passages that:

(1)    the appellant wanted to show the video in direct response to the proposition that the DFAT Country Report suggested that supporters or members of the BNP with a low profile (assuming acceptance of the appellant’s claims) faced a low risk only of being arrested and were not living in fear of political violence on a day-to-day basis, and therefore that his claims to fear harm on this basis may not be believed by the Tribunal;

(2)    in referring to “Bangladeshi current affairs”, the appellant is to be understood as alleging that the information on the video(s) was current (consistently with his submission that “it’s happening” and his plea at the end of the hearing for the Tribunal to “please consider …. my country’s current situation…”);

(3)    while the follow-up question from the member “what is it you want to say” is, at best, ambiguous, the Tribunal member’s question was at least treated by the appellant as an invitation to indicate how the video(s) fitted into his claims; and

(4)    fairly read, in response the appellant did explain how the video(s) fitted into his claims, namely, that mere involvement in the opposition party put him at serious risk of harm and that risk was a daily one. For example, the appellant states “people who are involved in politics, they don’t have any peaceful life … my risk is I was involved in politics. … the people who practice opposition party, police comes and takes them and they kill them. It’s happening every day”.

39    That being so, I consider that the finding by the primary judge at [26] that the appellant did not explain why the material was relevant and indeed central to his claims, while understandable without the transcript of the Tribunal, is shown to be in error. In particular, I do not accept the Minister’s submission that the primary judge was correct to find that the somewhat ambiguous questions by the Tribunal member as to what the appellant wished to say should be construed as an inquiry into why the videos were relevant, but that I should not construe the appellant’s responses as intended to answer those questions.

40    Thirdly, the information in the videos was relevant and probative. As earlier explained, the appellant claimed to face a real chance of persecution relevantly by reason of his involvement with the BNP and position with the Chhatra Dal and disputed the proposition that only those who had a high profile with the BNP faced a real risk of persecution. The videos contain apparently live footage of violence perpetrated by police against people in civilian dress who are involved in protests in Bangladesh and were apparently prepared by sources independent of the appellant. While it is not known whether any of the videos depict events post-dating the DFAT report (in contrast e.g. to ARG15 at [71] and MZYTS at [39]), the appellant described the video as depicting “current” affairs. Furthermore, at least one of the videos purports to depict police violence in Dhaka in May 2013 and therefore not long before the DFAT Country Report dated October 2014. Moreover the source of three of the videos, “AP”, “Desh Rights” and “CNN Live” is identified and in the case of the Desh Rights video, it is accompanied by an explanatory narration in English. In my view, these matters suffice to establish that the evidence was relevant and sufficiently cogent to require the Tribunal to consider whether it corroborated the appellant’s claims. To consider the quality of the evidence further would be to pre-empt a consideration of its weight which is a matter exclusively for the Tribunal. As Robertson J held in SZRKT:

120. The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. … It for the Tribunal to deal with the material before it and to resolve any conflicts in it.

41    Fourthly, the Minister submitted that “[t]here was no jurisdictional error in the AAT declining to view the video the appellant sought to show, if the Tribunal regarded the video as not constituting cogent evidence and as not playing a role in supporting or enabling its consideration of the appellant’s claims.” The difficulty, with respect, in that submission is that the Tribunal failed to engage at all with the video evidence. No assessment was made of its relevance to the appellant’s claims or its cogency by the Tribunal. The Tribunal’s decision not to receive the material because DFAT had obtained information from non-government, as well as government, sources and because the appellant accepted that the video(s) were publicly available, does not constitute a meaningful engagement with the potential relevance or weight to be afforded to the material in the video(s). It follows that the evidence was effectively disregarded without any reason sufficient in law to warrant the decision to do so and the Minister’s submission to the contrary must be rejected.

42    Finally, the Tribunal rejected the appellant’s claim to fear persecution by reason of his political involvement precisely because it accepted the assessment made in the DFAT Country Report. As such, it cannot be said that even if the material had been considered by the Tribunal, it could not have led to any different outcome. If accepted, the corroborating evidence may have led the Tribunal instead to accept the appellant’s claim to have a well-founded fear of persecution if returned to Bangladesh notwithstanding his lack of a high profile in the BNP.

43    It follows that, given the nature of the claims made, and the nature and importance of the video(s) to the assessment of the appellant’s claims, the Tribunal has fallen into jurisdictional error in declining to have regard to that evidence.

5.    CONCLUSION

44    The appeal against the decision of the primary judge to refuse the application for judicial review is allowed with costs. The parties should, however, be afforded the opportunity to make submissions on whether the order awarding the Minister his costs in the Federal Circuit Court should be set aside in all of the circumstances, if agreement on this issue cannot be reached.

45    Finally, the Court also extends its gratitude to Ms Baw, counsel for the appellant, for accepting the pro bono referral in response to the certificate issued pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), and to the appellant’s solicitors who also provided assistance pro bono.

Associate:

Dated:    17 August 2018