FEDERAL COURT OF AUSTRALIA

BFL16 v Minister for Immigration and Border Protection [2018] FCA 1356

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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 appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”): BFL16 v Minister for Immigration & Anor [2018] FCCA 333. The decision of the AAT was to affirm the decision of a delegate of the first respondent (“Minister”) not to grant the appellant a protection visa.

2    The appellant’s notice of appeal sets out the following two grounds of appeal:

1.    The [AAT] made a jurisdictional error when it failed to use the real test of persecution and harm according to the Migration Act.

2.    The [AAT] failed to apply the correct test in relation to the complimentary Protection provision contained in s 36(2) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow rules of real risk test of persecution and harm.

3    The appellant did not file written submissions in support of his appeal. He appeared at the hearing of the appeal and made brief oral submissions, with the assistance of a Bengali interpreter.

Background and appellant’s claims for protection

4    The appellant is a citizen of Bangladesh who arrived in Australia in June 2013. He lodged a protection visa application on 16 June 2014. In his application, the appellant claimed to be an activist of the Bangladesh National Party (“BNP”) and to fear harm from the authorities in Bangladesh and Awami League (“AL”) “thugs” and “hooligans” due to his political beliefs and activities with the BNP. The appellant expanded upon his protection claims in a typed “Statement of Claims”, which accompanied his protection visa application.

5    The Minister’s submissions set out the following details concerning the appellant’s claims, which do not appear to be in dispute:

5.    The appellant claimed he was a BNP activist who actively participated in action against the AL government. As a consequence, he was targeted by AL activists and hooligans and suffered physical and mental harm. In August 2001, he joined the student wing of the BNP, “Jatiyatabadi Chattra Oaf” (JCD) and participated in their activities and meetings, campaigned to students, distributed leaflets and hung posters. He “eventually” became an executive committee member and worked amongst people in his area to increase awareness of the BNP’s goals and achievements.

6.    The appellant claimed that after the AL came to power in 2006, BNP leaders and workers were targeted. The AL started a “severe movement’ against the BNP while the appellant was in college from 2006 to 2008. As an activist of “Chattra Oaf”, the appellant participated in activities at the instruction of his party and was engaged in local student politics. He later took a short break from politics for the safety of his “life and career’’ and, from 2010 to 2013, he was forced to change jobs a number of times due to conflicts with AL activists. In August 2010, he joined the “Jatiyabadi Juba Oaf Bakalia branch” and became a local leader.

7.    The appellant claimed he was verbally and physically assaulted by AL thugs and identified four specific incidents of harm. In June 2012, he was on his way to a BNP meeting when “thugs attacked the rally with “lethal weapons”. He was injured but was treated by a local doctor and recovered after a few days. On 4 October 2012, he was stopped by a group of AL “thugs” who threatened to kill him if he continued to participate in anti-government activities. On 21 December 2012, he was “attacked” on his way home from a BNP meeting and was “severely injured” requiring hospitalisation for a few days. On 23 January 2013, he was “attacked” by AL “thugs” on his way home from the party office.

8.    The appellant also claimed that BNP leaders and supporters lead an “abnormal life” in Bangladesh, and were being “arrested, abducted, detained and targeted” by members of the police and AL activists. The appellant claimed his life would be at risk if he was forced to return to Bangladesh due to the political situation and because the “law and order” in Bangladesh had “deteriorated to a great extent”. He was warned by his family and friends not to return to Bangladesh.

6    On 5 December 2014, the appellant attended an interview before the Minister’s delegate. On 9 December 2014, the delegate decided to refuse the appellant’s protection visa application.

AAT proceeding and decision

7    On 6 January 2015, the appellant applied to the AAT for a review of the delegate’s decision.

8    The appellant attended a hearing before the AAT on 19 April 2016 and gave the AAT the following documents:

(1)    a submission dated 15 April 2015;

(2)    a letter stating he was “a member of [B]angladesh Jatiotabadi Jubodol Bakalia Thana, Chittagong” and was “an honest and active member of party before he left Bangladesh” (“party membership letter”);

(3)    a hospital discharge certificate from the National Hospital Chattagram referring to an admission on 23 January 2013 and discharge of 26 January 2013;

(4)    a statutory declaration by the appellant dated 15 April 2016; and

(5)    pages from his passport.

9    On 28 April 2016, the AAT made its decision affirming the delegate’s decision.

10    The Minister submitted that:

The [AAT] comprehensively set out the appellant’s claims and evidence provided to the Department and the Tribunal … and referred to relevant country information and identified cogent reasons to find that the appellant was not a credible witness …

11    At para 2 of the AAT’s decision record, it recorded the appellant’s claims as follows:

The [appellant] claims that he fled Bangladesh because he was in danger from supporters of the ruling Awami League (AL). He claims that the has suffered physical and mental harm because of his political involvement with the Bangladesh Nationalist Party (BNP) and that, when he was in Bangladesh, he was assaulted, harassed, threatened, and forced to quit various jobs because of pressure from AL activists. He claims that, if he returns to Bangladesh, he will be persecuted because of his involvement with the BNP.

12    At para 71 of the decision record, the AAT noted that it was put to the appellant, at the AAT hearing, that the AAT had doubts about whether he was ever a BNP activist and that he would be motivated to be active in support of the BNP if he returned to Bangladesh. At para 75, the AAT concluded that it did not accept that the appellant was a credible witness or that he was ever actively involved in the BNP as claimed. The AAT gave detailed reasons for its conclusions that the appellant was not a credible witness.

FCCA proceeding and decision

13    On 23 May 2016, the appellant filed his application in the FCCA. The sole ground of review in the application was: “The tribunal failed to exercise its jurisdiction to consider all aspects of my claims”.

14    The appellant did not file any evidence in support of his application other than an affidavit annexing the AAT’s decision. Nor did he file any written submissions.

15    On 7 February 2018, a final hearing was conducted before the primary judge. On the same date, the primary judge pronounced orders and delivered detailed reasons for judgment dismissing the judicial review application with costs.

16    The Minister submitted that the FCCA judge accurately summarised the appellant’s claims, at [4]-[9] of her Honour’s reasons, and comprehensively outlined the appellant’s evidence to the AAT and the AAT’s findings and reasons (at [11]-[35] of her Honour’s reasons).

17    The Minister submitted that the FCCA judge also addressed the appellant’s oral submissions, which raised concerns about the AAT’s rejection of his explanation for not recalling the constituency in which he voted in the 2008 national elections (at [38] of her Honour’s reasons) and his explanation for waiting one year before applying for protection in Australia (at [46] of her Honour’s reasons).

18    The Minister submitted that the FCCA judge outlined the AAT’s assessment of the appellant’s evidence on these matters (at [40] and [47], respectively), and found the AAT’s associated findings and reasons were open on the available materials and demonstrated no jurisdictional error. The Minister further submitted that the FCCA judge also carefully examined the AAT’s assessment of the appellant’s evidence to support its credibility concerns (at [39], [41]-[44] and [48]­[49]) and found, for cogent reasons, there was no basis to impugn those findings.

Appeal to this court

19    The grounds of appeal do not identify any error on the part of the FCCA judge, instead alleging errors on the part of the AAT. Further, the errors identified by the grounds of appeal are different from the error alleged in the ground of judicial review before the FCCA: see [13] above.

20    Accordingly, the appellant requires leave to rely on the grounds of appeal. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46]    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [[1982] HCA 33;] (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [[2001] FCA 1833;] (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [[1986] HCA 33;] (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, 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. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

21    In particular, the “interests of justice” require consideration to be given to the strength of the fresh grounds.

Appellant’s oral submissions

22    The appellant submitted that his claim for protection was based on his political opinion. He said that he had to leave his country because he was involved in party politics and was a victim of torture, and that the torture was the reason for his hospitalisation, for which he had submitted papers.

23    The appellant also referred to the party membership letter and said that he did not know why it had not been accepted.

Ground one

24    Ground one is that the AAT “made a jurisdictional error when it failed to use the real test of persecution and harm according to” the Migration Act 1958 (Cth).

25    The Minister contended that this ground of appeal has no proper basis, submitting:

In its decision record, the Tribunal applied the correct law in assessing the refugee criterion and accurately set out the relevant law. There is nothing in the text of the Tribunal’s findings and reasons to support the appellant’s otherwise bland assertion that the Tribunal misapplied or misunderstood the correct test in assessing whether the appellant had a well-founded fear of persecution.

The Tribunal did not accept that the appellant was a credible witness or that he was ever actively involved with the BNP, a member or supporter of the BNP or left Bangladesh in 2013 because he was targeted by the AL. The Tribunal found his evidence about his claimed political activism was “vague, lacked detail and was not persuasive”. It was also troubled by identified inconsistencies between his written claims and oral evidence, the timing of his departure from Bangladesh and his one year delay in applying for protection after arriving in Australia.

The Tribunal had regard to independent country information in relation to the volatility of the political environment in Bangladesh but was unable to understand why, as the appellant claimed, the AL supporters would target him in “such an aggressive and sustained manner”.

The Tribunal found the appellant’s claims that he actively supported the BNP lacked credibility and “persuasive detail”. For example, it found his evidence about which constituency he voted in and which candidate was successful was “confused and contradictory” and that he changed and shifted his evidence to respond to the Tribunal’s concerns. The Tribunal also found that whilst the appellant provided accurate information about aspects of the BNP, he was unable to persuasively explain what it meant practically to be an “executive member” of the BNP (as he had claimed he was) and he was also unable to describe how he supported the party during the 2008 election other than to vote.

Further, the Tribunal was concerned about the appellant’s one month delay in departing Bangladesh after obtaining a visa to travel to Australia and did not accept his explanation for the delay. The Tribunal found the appellant was willing to “embroider and change his evidence” in an attempt to respond to the Tribunal’s concerns and did not find persuasive his evidence that AL supporters had visited his family looking for him. The Tribunal found its credibility concerns were fortified by the appellant’s one-year delay in applying for protection after he arrived in Australia and rejected his explanations that he was ready to go back to Bangladesh but did not because he was warned not to return or was awaiting the outcome of the January 2014 election.

The Tribunal expressly considered the appellant’s supporting documents but was concerned he had not provided some of the documents to the Department and identified deficiencies with the letter about his purported involvement with the BNP and the hospital discharge certificate. The Tribunal found the documents did not overcome its credibility concerns and relied on independent country information about the prevalence of fraudulent documents in Bangladesh and the late provision of the documents to accord them “little weight”.

On the basis of the evidence before it, and having regard to its findings of fact, the Tribunal did not accept that there was a real chance that the appellant would face serious harm for the reasons that he claimed and did not accept that he had a well­ founded fear of being persecuted for his actual or imputed political opinion or for any of the other convention reasons if he returned to Bangladesh now or in the reasonably foreseeable future.

As the primary judge correctly found, the Tribunal’s findings were “reasonably open” on the materials before it and for the reasons that it gave and no jurisdictional error had been established on any other basis raised by the appellant or was apparent on the material before the Court.

26    In response to the appellant’s oral submission, the solicitor for the Minister, Ms He, submitted that the AAT had assessed the appellant’s particular claims to fear harm arising from his political opinion but found that those claims were not credible in the light of an adverse assessment of the appellant’s credibility, and it was open to the AAT to reject the appellant’s claims on that basis.

Ground two

27    The second ground of appeal is that the AAT also failed to apply the correct test in relation to complementary protection and did not follow the “rules of real risk test of persecution and harm”.

28    The Minister argued that this ground also lacks any particulars and is baseless, submitting:

Having regard to its finding of fact in relation to its assessment of the refugee criterion, the Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence, of the appellant being removed from Australia to Bangladesh there was a real risk that he would suffer significant harm for any of the reasons claimed. The Tribunal was not satisfied that he met the complementary protection criterion.

Again, there is nothing in the Tribunal’s decision record to support the appellant’s bland assertion that the Tribunal misapplied or misunderstood the correct test in assessing whether the appellant met the complementary protection criterion. Having rejected the appellant’s key claims on the basis of adverse credibility findings, it was open to the Tribunal to rely on its earlier factual findings concerning its assessment of the refugee criterion when assessing whether the appellant met the complementary protection criterion. No error is revealed on the part of the Tribunal’s assessment of the complementary protection criteria and this ground cannot succeed.

Consideration and conclusion

29    As to appeal grounds one and two, I accept the Minister’s submissions. The appellant’s claims were considered by the AAT and found (at para 96 of the AAT’s decision record) not to be credible.

30    Neither of the grounds of appeal identify any basis for thinking that the AAT committed any jurisdictional error. Accordingly, there is no merits to the grounds of appeal and the appellant should not be permitted to rely on them.

31    Regarding the appellant’s oral statement that he did not understand why the party membership letter was not accepted, Ms He noted that the AAT had addressed the documents provided by the appellant at paras 94 and 95 of its decision record and found that they did not assist the appellant’s case. Those paragraphs state:

94.    I do not accept that the applicant’s case is assisted by the documentation he submitted to the Tribunal. At the hearing I asked the applicant why he did not provide the letter concerning his involvement to the BNP and the hospital discharge certificate to the Department. He responded that, when he came to Australia he tried to communicate with the leaders at the BNP office he used to go to but, at that time, many of them were in jail or in hiding and the office was locked up for a period of time due to pressure from AL. Asked whether the situation had improved by October 2015 (the date of the letter), the applicant said overall the situation has not improved but he was able to communicate with a person who was released from jail. I put to the applicant I couldn’t see the name of the person who signed the letter and I passed it to the interpreter (noting the name might be in Bengali). The interpreter advised there is no name, only a reference to a BNP president Jatioyabidal in Chittagong. At the hearing the applicant advised that when he went to hospital on 23 January 2013 he had a CT scan and x-rays. He advised that he did not have any broken bones. So far as the writing on the hospital discharge form is legible, it is consistent with his oral evidence. However, as I put to him, even if it were accepted that he was in hospital, it was not clear from the discharge certificate why he was in hospital. He replied that he was injured and he went to the hospital.

95.    In my assessment, the documentation which the applicant has provided does not overcome my significant concerns about the credibility of his claims: As I put to the applicant, the country information which is available to the Tribunal indicates that fraudulent documentation is easy to obtain in Bangladesh. In these circumstances, I consider that the documents he has submitted to the Tribunal can be given little weight. The applicant has maintained the documents he has provided are genuine. However, having regard to the available country information and the timing of the production of the documents, I give the documents little weight. The documents do not overcome my significant concerns about the credibility of his claims.

32    I accept that paras 94 and 95 provide an explanation for why the party membership letter (and the other documents submitted by the appellant to the AAT) did not assist the appellant’s claims. Those paragraphs do not reveal any jurisdictional error on the part of the AAT.

33    It follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    6 September 2018