FEDERAL COURT OF AUSTRALIA

BGW16 v Minister for Immigration and Border Protection [2018] FCA 1244

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an application for an extension of time and leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) made on 26 February 2018: BGW16 v Minister for Immigration [2018] FCCA 380. The FCCA judge dismissed the applicant’s application to that court because his Honour was not satisfied that the applicant had raised an arguable case for the relief he claimed.

2    The FCCA judge’s decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (“FCCA Rules”) and was therefore interlocutory in nature: r 44.12(2) of the FCCA Rules. Accordingly, leave to appeal from the decision is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    Pursuant to r 35.13 of the Federal Court Rules 2011, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The judgment and orders of the FCCA were made on 26 February 2018, and consequently the application for leave to appeal was required to be filed by 12 March 2018. The application was filed on 20 March 2018 (eight days out of time). The applicant therefore requires an extension of time to bring the application for leave to appeal.

4    The proposed grounds of appeal are (errors in original):

1.    [THE FCCA judge] failed to hold that the AAT committed a jurisdictional error when it failed to give a reasonable reasons to justify the operation of s.45AA of the Migration Act 1958 (cth) (Migration Act) and regulation 2.08F of the Migration Regulations 1994 (Cth) (Regulations) apply the correct test in relation to … section 26(2)(aa) of the … Act …

2.    [The FCCA judge] failed to hold that the Tribunal made a jurisdictional error when it mistook the facts about his original place of family [being the Rohingya community of Burma] …

3.    The appellant claims that the Tribunal made a jurisdictional error when discarded the all the oral and written evidence appellant without giving a solid reason to discard. He never fabricated any evidence of truth. He was in Australia when he submitted evidence through assistance govt. Funded Migration Agent. It was a obligation of the representative to filter the evidence submitted for evidence for the claim for protection. The appellant claims he never told his friends in Bangladesh to make a fabricated documents. Whatever possible, his friends or closed relatives sent the evidence to Australia in a good faith and the appellant submitted to the Department.

4.    [The FCCA judge] failed to hold that the AAT made a jurisdictional error when it did not accept any reasons (such as mental or health) which influenced the mental situation of the appellant during the process of his application at the stage of Department, Tribunal and the Federal Circuit Court. He was denied procedural fairness and natural justice.

5    The applicant also submitted, in an affidavit made on 19 March 2018, that:

I believe and stated in the Brief Description that I have genuine fear of Persecution in Bangladesh. If I am forced to go back to Bangladesh, I am sure I will be tortured or killed by the Awami League Supporters. I appeal to the Court to consider in details my case for complementary Protection.

6    The applicant did not make written submissions in support of his application. He attended the hearing of the application, assisted by a Bengali interpreter. He submitted that the Court should review carefully the documents presented to the FCCA.

Background

7    The applicant is a citizen of Bangladesh who first arrived in Australia as an irregular maritime arrival on 4 December 2012.

8    On 23 December 2012, he was interviewed by an officer of the Minister’s department. He then applied for a protection visa, his application being received by the Minister’s department on 12 April 2013. With his protection visa application, the applicant provided a statutory declaration dated 25 March 2013 in which he set out his claims to fear harm on return to Bangladesh.

9    On 13 August 2014, the delegate refused to grant the applicant the visa.

10    On 20 August 2014, the applicant applied to the (then) Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision. On 18 March 2016, the applicant appeared before the Tribunal with the assistance of a Bengali interpreter to give evidence and present arguments. On 5 May 2016, the Tribunal affirmed the decision to refuse the grant of the visa.

Applicant’s claims for protection

11    The Minister’s written submissions noted (and I did not understand it to be in dispute) that the applicant’s claims to fear harm in Bangladesh were advanced in his entry interview dated 23 December 2012, a statement accompanying his protection visa application, written submissions dated 18 March 2016 and in oral evidence at hearings before both the delegate and the Tribunal. The applicant also submitted a translated police report in support of his claims.

12    The Minister’s submissions summarised the applicant’s claims for protection (without disagreement) as follows:

5.1    His father and brother were involved in the Bangladesh Nationalist Party (“BNP”). They used to attend BNP rallies and perform activities in support of the party. He was not a member of the BNP but was involved “because of [his] father”.

5.2    He had little involvement in politics but he was arrested and detained for two days in 2007 “on suspicion” and then released. He believed his arrest may have been in retaliation against his father.

5.3    Following the Awami League (“AL”) coming to power in Bangladesh, his father and brother had departed Bangladesh and gone to live illegally in Saudi Arabia and Malaysia, respectively.

5.4    On 25 August 2012, the AL conspired to bring a criminal case against him. He was told of this case by a police informer. He was accused, along with four or five others, of having abducted a boy in his village who had never been found. When he heard of this charge, he fled to his uncle’s house and ultimately, to Australia.

5.5    His sister had informed him that the police had been looking for him in his village since his departure for Australia.

5.6    Following the death of his father, his siblings had informed him that he had been born in [Myanmar] and had migrated to Bangladesh when he was very young.

5.7     Although he had not faced any difficulties in the past on the basis of his Rohingya ethnicity, he feared harm in Bangladesh on this basis.

Tribunal decision

13    The Tribunal did not accept that the applicant was a credible witness. The Tribunal formed the view that the applicant had fabricated claims and concocted evidence to achieve an immigration outcome.

14    The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (“Act”), and therefore affirmed the decision under review.

15    The Minister’s submissions set out the following matters concerning the Tribunal’s decision:

In its decision record, the Tribunal set out the relevant law ... and the applicant’s claims and evidence. The Tribunal noted that it had listened to the recording of the applicant’s interview with the delegate and that it had given the applicant until 1 April 2016 to provide a written response to “s.424AA matters raised and any other matters he considered relevant”.

The Tribunal noted that it had raised with the applicant under s 424AA of the Act, that he had not mentioned the criminal case levelled against him in Bangladesh in his entry interview. The Tribunal noted, but did not accept, the applicant’s explanation that he was concerned because it was a serious police matter and he feared being deported. The Tribunal did not accept the applicant’s written explanation, provided to the Tribunal post-hearing, for not having raised this claim at the entry interview, noting that if he had genuinely notified the Minister’s department of this claim after the entry interview, he would have raised this matter with the Tribunal at the hearing.

The Tribunal noted inconsistencies in the applicant’s claims at various stages of his visa application and review process, as to when, where and by whom the applicant had been informed that a false case had been brought against him. The Tribunal considered the applicant’s explanation for the inconsistencies, but rejected them on the basis of the applicant’s “confusing and inconsistent evidence on multiple levels”.

The Tribunal referred to country information from a variety of sources, including DFAT, which indicated that any risk of harm arising from a person’s political profile would depend on the level of that political profile and whether they had come to the adverse attention of the authorities. The Tribunal further noted that it had conducted a search for country information but had not found any information to indicate that family members of BNP members had been targeted. On the basis that the applicant did not claim to have any personal political involvement and the applicant’s father and brother had departed Bangladesh in 2011/2011, the Tribunal rejected the applicant’s claim to have been targeted by AL by having a false case brought against him.

On the basis of its adverse credibility findings, the Tribunal proceeded to reject the entirety of the applicant’s claims that he had faced, or would face, harm as a result of his family’s BNP association, or that there was a false case against him. The Tribunal noted the applicant’s claim that his “brain [was] not working,” but further noted that there was no medical evidence to support such a claim and that the applicant had been able to “provide his evidence chronologically, and free of any impediment”.

The Tribunal noted its concerns that the applicant’s claims in relation to his Rohingya ethnicity were raised for the first time on the day of the hearing before the Tribunal and that this aspect of the applicant’s claims directly contradicted his earlier evidence to have been born in Bangladesh and to have lived there his entire life. The Tribunal rejected the applicant’s explanation for having only recently raised his claim to be a Rohingya, noting that it did not accept that the applicant’s siblings would only tell him of his Rohingya ethnicity when he had a protection visa application outstanding since 2013. The Tribunal further noted the applicant’s evidence that he had never previously faced any difficulty on account of his ethnicity. Noting the absence of any evidence to support this aspect of the applicant’s claims, other than his own oral testimony, and given its broader credibility concerns, the Tribunal was not satisfied that the applicant was a witness of truth in relation to his claim to be of Rohingya ethnicity.

[References to the bundle of documents that was before the Tribunal omitted.]

FCCA proceeding

16    On 26 May 2016, the applicant made an application to the FCCA for review of the Tribunal’s decision pursuant to s 476 of the Act.

17    On 8 December 2016, the matter was listed for a hearing pursuant to r 44.12 of the FCCA Rules on the basis that the application did not raise an arguable case for the relief sought. Rule 44.12 provides:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed — adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

18    The applicant appeared on his own behalf at the hearing of the FCCA, with the assistance of a Bengali interpreter.

19    At [14] of his Honour’s reasons, the FCCA judge set out the three grounds of review in the applicant’s written application. The Minister’s submissions summarised them as follows:

Ground one contended that the Tribunal fell into error by failing to consider each integer of the applicant’s claims and failing to consider all of the applicant’s written and oral evidence. Ground two attacked the Tribunal’s decision to discard the applicant’s written and oral submissions on the basis of its cumulative credibility concerns. Ground three contended that the Tribunal applied the wrong test in relation to complementary protection and failed to have regard to documents submitted by the applicant’s representative.

20    At [19], the FCCA judge noted that the applicant, in his written submissions, did not address the grounds of the written application but appeared to seek to argue other or additional grounds.

21    The Minister’s submissions summarised the FCCA judge’s reasons as follows:

The [FCCA] judge observed that ground one asserted four errors. In relation to the first error, which contended that the Tribunal failed to consider each of the applicant’s claims to fear harm, the [FCCA] judge found that the application did not identify which integer of his claim the Tribunal failed to consider and found that the Tribunal did consider all of the applicant’s claims and each aspect of them. Secondly, the [FCCA] judge noted that the applicant complained that the Tribunal did not consider that he worked for the BNP but found that the applicant made no such claim. Thirdly, the [FCCA] judge noted that the applicant complained that the Tribunal failed to consider all of the applicant’s written and oral evidence but found that the applicant did not identify what evidence was not considered and that it did consider all of the applicant’s evidence relevant to his claims. Fourthly, the [FCCA] judge noted that the applicant complained that the Tribunal did not consider recent country information about atrocities committed by the AL but found that the Tribunal did have regard to the DFAT country information as required by Ministerial Direction No. 56.

With respect to ground two, which asserted that the applicant told the truth to the Tribunal and the Tribunal misunderstood the facts in finding that he fabricated his claim, the [FCCA] judge found that by this complaint the applicant sought impermissible merits review and that the Tribunal’s analysis of the applicant’s claims and evidence was comprehensive.

The [FCCA] judge observed that ground three asserted two errors. In relation to the first error, which contended that the Tribunal applied the wrong test in relation to its consideration of the complementary protection criterion, the [FCCA] judge could not see that any arguable case arises from the Tribunal’s approach in relation to the same. As for the second error, which contended that the Tribunal failed to have regard to documents submitted, the [FCCA] judge found that the applicant could not identify what documents he submitted showed the atrocities committed by AL supporters … and that the Tribunal was under no obligation to make an enquiry about the provenance of police reports submitted to the delegate.

The [FCCA] judge then proceeded to consider the other matters raised in the applicant’s written submissions which appeared to assert a breach of ss 424A and 424AA of the Act with respect to the Tribunal’s concerns about the credibility of his claims and information he gave. The [FCCA] judge found that the Tribunal’s subjective views of evidence was not information for the purpose of s 424A and that there was nothing in the evidence before the Court to suggest that the Tribunal considered what was set out in the arrival interview to be information that was the reason or part of the reason for affirming the delegate’s decision.

The [FCCA] judge found that there was nothing in the evidence before the Court to argue that r 44.13 of the [FCCA Rules] should be waived in the interests of justice.

[References to the bundle of documents that was before the Tribunal omitted.]

LEGAL FRAMEWORK

Extension of time for leave to appeal

22    The relevant considerations in deciding whether to grant an extension of time for leave to appeal include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and whether the application for leave to appeal has such prospects of success as not to render the extension of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802; SZSPR v Minister for Immigration & Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [16].

Leave to appeal

23    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

(1)    that in all the circumstances of the case the decision is attended by sufficient doubt to warrant its being reconsidered by the appellate Court; and

(2)    that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at [2]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]–[44] per French J (as his Honour then was) (Beaumont and Finkelstein JJ agreeing); Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]–[30].

24    These considerations are cumulative such that leave to appeal will not be granted unless both limbs are made out: Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; [2016] 237 FCR 276 at [12].

CONSIDERATION

Prejudice and delay

25    The Minister accepted that there was little prejudice to him if the Court were to grant an extension of time, beyond the public interest in the finality of administrative decision-making. Whilst acknowledging that the length of delay in filing the application (eight days) is not lengthy, the Minister submitted that the applicant has offered no explanation whatsoever for the delay. The Minister submitted that it was the responsibility of the applicant to ascertain his review rights and any applicable time limits, citing SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 (see [33] in particular).

Merits

26    The Minister submitted that the grounds of appeal contained within the draft notice of appeal have no prospect of success. Consequently, the Minister argued that he should not be put to the expense and prejudice of defending unmeritorious proceedings.

Ground one

27    The Minister’s written submissions noted that, whilst the applicant did assert before the primary judge that the Tribunal failed to apply the correct test with respect to the complementary protection criterion, s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) were not raised.

28    Section 45AA concerns when an application for one visa is taken to be an application for a different visa. Regulation 2.08F concerns when certain applications for Protection (Class XA) visas are taken to be applications for Temporary Protection (Class XD) visas. These provisions do not have any relevance to the circumstances of the applicant.

29    The Minister submitted that the FCCA judge was correct to find (at [37] of his Honour’s reasons) that no arguable case arises from the Tribunal’s approach in relation to the Tribunal’s consideration of the complementary protection criterion. The Minister submitted that the FCCA judge correctly found that the Tribunal was entitled to rely on anterior findings of fact expressed earlier in its decision record in considering the issue of complementary protection. The applicant has not pointed to any error in the FCCA judge’s reasons in so finding.

30    In the absence of any apparent error, I accept that ground one has no prospect of success.

Ground two

31    The Minister interpreted this ground to assert that the Tribunal misunderstood certain facts about the applicant’s family being from the Rohingyan community of Myanmar and contends that the applicant never misled the Tribunal.

32    The Minister submitted that by this ground the applicant seeks to invite the Court to engage in impermissible merits review, citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [272].

33    Ground two raises a complaint about the Tribunal’s fact finding and does not raise any possible appellable error on the part of the FCCA judge.

Ground three

34    Again, the Minister submitted, by this ground the applicant seeks to invite the Court to engage in impermissible merits review.

35    The Minister submitted that the FCCA judge considered the applicant’s complaint that the Tribunal failed to consider all of the applicant’s written and oral evidence but found (at [30] of his Honour’s reasons) that the applicant did not identify what evidence was not considered and that it did consider all of the applicant’s evidence relevant to his claims. The Minister noted that the applicant has not identified any error in this reasoning and submitted that the FCCA judge correctly rejected this ground.

36    At [33] and [34] of his Honour’s reasons, the FCCA judge considered the applicant’s complaint that the Tribunal misunderstood the facts in finding that he fabricated his claim. His Honour found that by this complaint the applicant sought impermissible merits review and that the Tribunal’s analysis of the applicant’s claims and evidence was comprehensive.

37    As with ground two, ground three raises a complaint about the Tribunal’s fact finding and does not raise any possible appellable error on the part of the FCCA judge.

Ground 4

38    By this ground, the applicant contends that the Tribunal erred “by not accepting any reasons (such as mental or health) which influenced the mental situation of the appellant during the process of his application at the stage of Department, Tribunal and Federal Circuit Court”. The Minister noted that this ground was not raised before the FCCA judge.

39    At para 83 of its decision record, the Tribunal noted the applicant’s claim that his “brain [was] not working” but found that that there was no medical evidence to support such a claim and that the applicant had been able to “provide his evidence chronologically, and free of any impediment”.

40    No appellable error is revealed by this ground.

Applicant’s oral submission

41    The applicant submitted that the Court should review carefully the documents presented to the FCCA. However, he did not identify any particular document before the FCCA for consideration by this Court. From [23] of the FCCA judge’s reasons, it appears that the documents submitted to the FCCA by the applicant comprised the application for review and written submissions. The FCCA judge addressed each of the grounds in the application (at [25] to [42] of his Honour’s reasons), the applicant’s written submissions (at [45] to [47] of his Honour’s reasons) and the applicant’s oral submissions (at [48] of his Honour’s reasons).

42    The tender bundle for the application comprised the decision record of the Tribunal, the orders of the FCCA judge and the FCCA judge’s reasons. Without any indication from the applicant of how a review of any document would advance his application, I am not satisfied that the proposed appeal has any prospect of success based on the applicant’s oral submission.

CONCLUSION

43    Accordingly the application for an extension of time and leave to appeal must be dismissed with costs.

Associate:

Dated:    23 August 2018