FEDERAL COURT OF AUSTRALIA

DRP16 v Minister for Immigration and Border Protection [2018] FCA 1522

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file and serve a notice of appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an application for an extension of time in which to file a notice of appeal against the orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 24 November 2016.

2    Rule 36.03 of the Federal Court Rules 2011 provides that a notice of appeal must be filed within 21 days after the date on which the relevant order was made. As the order dismissing the application for review was made on 21 March 2018, the applicant had until 11 April 2018 to file a notice of appeal. Instead, the applicant filed his application for an extension of time, an affidavit in support, and a draft notice of appeal on 27 April 2018. He did so 16 days out of time.

3    The first respondent objects to any extension of time being granted on the basis that the applicant did not provide a satisfactory explanation for the delay and that the applicant’s draft grounds of appeal do not establish that the primary judge’s decision was attended by sufficient doubt to warrant an extension.

Procedural history

4    The applicant, a citizen of Bangladesh, arrived in Australia on 4 December 2012 and applied for a Protection (Class XA) visa on 4 April 2013. A summary of the applicant’s claims that were made to the delegate was set out at [5] of the primary judge’s reasons:

… In that application he claimed that he had been falsely accused of murder because of his involvement in the Bangladesh National Party (BNP). In particular, he claimed that he would be persecuted by the Awami League (AL) for reason of his political opinion and that the false accusation was part of that persecution.”

5    A delegate of the Minister rejected the application on 16 April 2015 and the applicant applied to the Tribunal on 23 April 2015 for review of that decision. The Tribunal conducted a hearing on 7 October 2016, at which the applicant made the following claims, as summarised at [7] of the primary judge’s reasons:

At the hearing the applicant claimed, in addition to his earlier claims, that he had held a position with the BNP and that he had been tortured in Bangladesh, although he later conceded that he had never been harmed by the AL. The applicant claimed that “[h]e had been working with the Bangladesh Jatiobadi Dal in Australia and had attended meetings all over Sydney as an executive member”. The applicant also stated that “[h]e could not return to Bangladesh because his home was no longer there as people had thrown stones at it” and “[h]e could not rebuild his home with the assistance f his brothers as they were also living in fear”. His agent claimed on his behalf that the applicant would face a risk of harm in Bangladesh as a person returning from a wealthy country, namely Australia.

6    On 24 November 2016, the Tribunal set aside the delegate’s decision to refuse to grant the applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the applicant a Temporary Protection (Class XD) visa.

7    The applicant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia on 5 December 2016. While appearing self-represented at the hearing on 21 March 2018, the applicant was given the opportunity to make submissions in support of his application. The Federal Circuit Court dismissed his application by way of extempore judgment that same day.

The Tribunal’s decision

8    As summarised at paragraph 17 of the first respondent’s submissions, the Tribunal concluded that the applicant was not a witness of truth and had fabricated his claims for the purpose of obtaining a protection visa for the following reasons:

17.1    The Tribunal found that the identity documents submitted by the applicant were not genuine;

17.2    The Tribunal was not satisfied that the applicant had been, or was, a member or supporter of the BNP; it followed that the Tribunal did not accept any of the applicant’s claims that flowed from that;

17.3    The Tribunal did not accept that the applicant ever engaged in criticism of the Awami League, was associated with the BNP in Australia or would be perceived as a BNP supporter;

17.4    The Tribunal did not accept that the court documents submitted by the applicant were genuine and found that the claim in relation to the false case against the applicant had been fabricated; it further found that the applicant was not accused of the kidnapping and/or murder of Shourav Shaha or Shamal Kumal, and did not accept that the applicant’s friend, or anyone else associated with the applicant, was implicated in any kidnapping or murder;

17.5    The Tribunal did not accept that the applicant fled Bangladesh for the reasons claimed or had been/ was of adverse interest to the Bangladeshi authorities or the Awami League; and

17.6    The Tribunal was not satisfied that returnees to Bangladesh were at risk of harm because they were perceived as wealthy people.

(Tender Bundle references omitted)

9    Accordingly, the Tribunal was of the view that the criteria for the grant of the protection visa had not been made out because it was not satisfied that there was a real chance of serious harm or real risk of significant harm to the applicant if he returned to Bangladesh, either immediately or in the reasonably foreseeable future.

The Federal Circuit Court proceedings

10    The applicant based his application to the Federal Circuit Court on two grounds, namely that the Tribunal failed to comply with the requirements of ss 424A and 425 respectively of the Migration Act 1958 (Cth) in making its decision regarding the applicant’s review application.

11    In support of the first ground, the applicant raised the following six particulars (quoted without alteration):

•    The Tribunal failed to determine well-founded fear of the applicant that he is likely to face in his reasonably foreseeable future upon return to his country of origin.

•    The Tribunal relied on any or all of the information in assessing and making decision of the applicant's application rather than focusing as to why the applicant applied for his protection visa. The tribunal ignored the fact that there was significant risk that the applicant would have suffered upon his return to his country of origin.

•    The Tribunal made its decision in a conventional way without satisfying the provisions of Migration Act 1958.

•    The Tribunal hearing and decision contained huge procedural unfairness in deciding the applicant’s review application. The tribunal asked questions to the applicant not related to the refugee’s convention or even beyond the Migration Act definition of refugees. The tribunal conducted cross questioning to the applicant for a duration of approximately 6 hours and some of the questioning was irrelevant to the applicant’s claim for his protection visa application.

•    The tribunal made its findings without any evidence or verification before rejecting the applicant’s protcction visa claims in a conventional way which constitutes a non-compliance of s424A of the Migration Act 1958.

•    Subsection 424A (1) (b) required the tribunal to ensure, as far as was reasonable practicable that the applicant understood as to why the information and questions were relevant to the review applicant for the purpose of s91R (3) and s36 (2) (a a), and the consequences of being relied on in affirming the decision that is under review and the tribunal failed to do so and therefore committed a jurisdictional error.

12    The relevant parts of s 424A of the Act are subsections (1)(a)–(c), which provide as follows:

(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.

13    The primary judge considered at [14] to [31] of his reasons that none of these particulars supported the contention that the Tribunal failed to comply with the requirements of this provision because:

    The first particular did not relate to the breach of any obligation under s 424A of the Act but rather concerned the applicant’s disagreement with the conclusion that the Tribunal reached, and therefore did not establish jurisdictional error.

    The second particular was similarly focused on the merits of the Tribunal’s reasoning and also did not establish jurisdictional error.

    The third particular was phrased unclearly, did not illustrate any discernible error and was not supported by either written or oral submissions.

    The fourth particular did not address the requirements in s 424A of the Act and was not supported on the evidence, which revealed that the hearing lasted for three hours, including an adjournment, and that the Tribunal did not ask questions that were unrelated to his claim. To the extent that the Tribunal focused on issues that the applicant had not considered, that did not make the hearing unfair.

    The fifth particular was insufficient because the Tribunal was not required to have rebutting evidence before it rejected the applicant’s claims, the applicant did not identify any obvious inquiry that the Tribunal could have made in respect of a critical claim and the Tribunal made adverse credibility findings against the applicant following a close assessment of the material before it.

    The sixth particular suggested that the Tribunal had to explain the relevance of each of its questions to the criteria for the grant of a protection visa, which is not what s 424A requires.

14    In support of the second ground, the applicant relied on the following particular:

The tribunal made its findings without any sound basis or evidence in rejecting the review applicant’s witness and claims of his protection visa application as not credible and such an act of the tribunal constitutes breach of s425 of the Migration Act 1958.

15    The relevant part of s 425 of the Act is subsection (1), which states that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

16    The primary judge considered at [32] that the applicant had not demonstrated that he had a lack of opportunity at the Tribunal hearing to give evidence and present arguments about the issues. Moreover, the primary judge concluded at [33] that this second ground reiterated the assertion made in the fifth particular to the first ground and should therefore be rejected for the same reasons (see [13] above).

The Draft Notice of Appeal

17    The draft notice of appeal before this Court puts forward five grounds of appeal (again quoted without alteration):

1.    Hon. Judge SMITH of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act .The AAT failed to separate the Claim to be Refugee and the fear of harm test for the provision of Complementary Protection . AAT decision is unreasonable with regards to Complementary Provision .

2.    The Hon . Judge failed to hold that the AA T’. exceeded its jurisdiction or constructively to failed to exercise its jurisdiction ..

3.    The Hon. Judge to hold that the Tribunal made inconsistent assertions on the credibility testimony .

4.    The appellant claims that the Tribunal made decision with closed mind about the Applicant’s document and oral evidence and written evidence .

5.    The appellant claims that he was denied natural justice and procedural fairness when the hearing was conducted freely and fairly. The applicant’s mental distress and his capabilities to understand the process of hearing were totally ignored. Hon. Judge failed to hold that the AAT completely ignored the Hearing rules and continued hearing for six hours without giving any relief. The continuous hearing was legally unreasonable .

18    As noted by the first respondent at paragraph 30 of its outline of submissions, the task of this Court is to determine whether the decision of the Federal Circuit Court was affected by any appellable error. The first respondent contends at paragraphs 31 to 32 that leave should not be granted to the applicant to raise any of the first four grounds of appeal, which were not pleaded before the Federal Circuit Court, because they have insufficient prospects of success. Further, the first respondent submits that the fifth ground of appeal is similar to the fourth particular to the first ground raised before the Federal Circuit Court and should therefore be rejected for comparable reasons.

19    I consider that the first ground of appeal is not supported by the evidence before me. The Tribunal provided a correct statement of the complementary protection criterion in s 36(2)(aa) of the Act at [9] of its reasons and applied that test to the applicant’s circumstances at [49] to [53]. This was outlined in a distinct section of the Tribunal’s reasons that was separated from its findings with respect to the refugee criterion in s 36(2)(a) of the Act at [36] to [48]. As for the final claim in this ground of appeal, it is well-accepted that a conclusion of legal unreasonableness is not one to be reached lightly: see SZUTO v Minister for Immigration and Border Protection [2018] FCA 1267 at [29], and the cases cited therein. I am not persuaded that there is any substantiated argument the Tribunal’s factual reasoning process was so flawed so as to warrant such a finding.

20    As submitted by the first respondent at paragraph 35, the second ground of appeal is not supported by sufficient particulars. It is unclear the basis upon which the applicant asserts that the Tribunal either exceeded, or constructively failed to exercise, its jurisdiction. It is the statement of a conclusion without substantiation. The Tribunal considered in its statement of reasons both the refugee and complementary protection criteria in turn. I do not consider that there is any substantive argument that the applicant would establish any overreach or non-exercise of the Tribunal’s functions if the extension of time were granted.

21    The third ground of appeal, which is directed to the Tribunal’s adverse credibility findings, again asserts error without providing any particulars. Credit findings may be susceptible to review for jurisdictional error: see CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60] to [65]. Nevertheless, the Tribunal’s reasoning in this case appears rational and with apparent proper consideration given to the evidence before it. At [19] to [35] of its reasons, the Tribunal identified several issues of concern in its assessment of the applicant’s credibility, including:

    Doubts as to the authenticity and provenance of his identity documents and character reference that were strengthened by country information which indicated a high prevalence of document fraud;

    Irregularities in the evidence that purportedly demonstrated his involvement with the BNP;

    Inconsistencies with respect to the false case that the applicant claimed was the reason he had to flee Bangladesh; and

    The lack of any evidence that the applicant suffered from memory deficits or some other diagnosed condition.

22    The fourth ground of appeal is an unsubstantiated allegation of bias on the part of the Tribunal. The applicant has not presented any basis upon which to draw such a serious conclusion, particularly because the Tribunal justified its conclusions, as considered above, and accepted certain aspects of the applicant’s claims, as can be seen at [36] and [45] of the Tribunal’s reasons.

23    I accept the first respondent’s submission that the fifth ground of appeal raises substantially similar issues to the fourth particular to the first ground before the Federal Circuit Court, and can be rejected on similar grounds. The additional reference to mental distress is not supported by any evidence and therefore does not change this conclusion.

Further application and appeal submissions

24    In orders made on 22 August 2018, I allowed the applicant until 12 September 2018 to file and serve any submissions upon which he seeks to rely in support of his application and in support of the appeal should the application be successful.

25    On 12 September 2018, the applicant filed additional submissions, as follows (again quoted without alteration):

1.    The honourable Judge of the Federal Circuit Court of Australia misinterpreted s.424A of the Migration Act. In his reasons at paragraph 31 his honour quoted: “……none of the particulars support either an independent jurisdictional error or the error asserted in the first ground, namely a breach of s.424A of the Act. It may be noted that the Tribunal at the hearing did give the applicant certain information which it thought it was obliged to do pursuant to s.424A of the Act: see [22] and [23] of its reasons. It is not clear to me that any obligation arose under s.424A of the Act in respect to the information referred to there, but if the Tribunal went beyond what it was required to do, that did not in itself lead to any error that affected its jurisdiction.”

I submit that the tribunal when goes beyond what it was required to do so and in doing that asks itself a wrong question then the decision is certainly affected by jurisdictional error.

2.    The appellant relies on the written submission made by the legal representative of the appellant [Court Book p.121-123] in relation to the summary of the documents provided to the tribunal for assessment of his political involvement and the degree of persecution in Bangladesh.

3.    The appellant submits that the appeal should be granted with costs in favour of the appellant.

26    The applicant’s first submission asserts that the primary judge misinterpreted s 424A of the Act but provides no further explanation in support of that statement. As outlined at [13] above, the primary judge determined that the applicant’s first four particulars were not specifically directed toward s 424A and that the fifth and sixth particulars concerned matters which s 424A did not require. It remains unclear what the applicant considers to have been the wrong question that the Tribunal asked itself or when the Tribunal went beyond what it was required to do. This submission does not identify any new basis upon which I could consider that the appeal’s prospects of success may have increased.

27    Similarly, the second submission relies on material already before the Court without providing further reasons to establish a jurisdictional error. The implication of this submission is that the Tribunal should have reached a different conclusion based on this summary. In addition to what I have said above at [21], this written submission and summary was to be assessed alongside all of the other evidence before the Tribunal. Having considered all of the evidence before it, it was open to the Tribunal to conclude as it did and no jurisdictional error has been made out.

28    The issue of costs raised in the third submission naturally turns on the outcome of this application.

29    To that end, I consider that the applicant has now had ample opportunity to advance arguments in support of his application and appeal. On the available material, the applicant has not demonstrated any reason for me to criticise the approach taken by the Tribunal.

30    The Tribunal appeared to provide coherent reasons to explain why it did not accept the applicant’s claims. Accordingly, I am of the view that the Tribunal discharged its statutory duty to review the evidence before it and perform a complete review of the delegate’s decision. It follows that the Federal Circuit Court’s conclusion that the Tribunal’s process was not affected by jurisdictional error itself did not give rise to any appellable error.

31    Since I am not persuaded that there is any legitimate basis to think that the appeal would succeed, the application for an extension of time in which to file and serve a notice of appeal should be dismissed with costs.

Associate:

Dated:    12 October 2018