FEDERAL COURT OF AUSTRALIA

CVO15 v Minister for Immigration and Border Protection [2018] FCA 1604

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

FARRELL J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia in CVO15 v Minister for Immigration [2017] FCCA 813. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Protection (Class XA) visa.

Background

2    The appellant (also referred to by his pseudonym CVO15) is a citizen of Bangladesh. On 28 March 2013, he landed at Darwin as an irregular maritime arrival to Australia. He lodged an application for a protection visa on 19 June 2013 which was accompanied by a statutory declaration in which he set out his claims. He was represented by a migration agent in relation to the application.

CVO15’s claims

3    In summary, CVO15 claimed that:

(1)    His family supported the Bangladesh Nationalist Party (BNP). He supported the BNP by attending meetings of the local branch, participating in rallies and putting up posters and banners in his area. His political activism increased during election periods. He became a member in 2010 and was elected as secretary of his village branch in 2011.

(2)    In 2012, the secretary of a nearby branch of the Awami League (the BNP’s political opposition) was shot and killed at the local bazaar. A few days later CVO15’s uncle heard from villagers that CVO15 was a suspect in the killing. The victim’s brother and other Awami League supporters accused CVO15 and about 10 other BNP supporters of committing the murder. He believes that he was accused because of his involvement with the BNP.

(3)    After the police commenced an investigation, the matter was referred to the Rapid Action Battalion (RAB), an elite unit within the police, who were given the names of the murder suspects. The RAB was known to conduct extrajudicial killings of persons of interest. CVO15 became very fearful. After he became aware that he was a suspect in the killing, he went into hiding at his cousin’s house two kilometres away from his home in the same village, keeping a low profile and sometimes staying with friends overnight. During that time the RAB visited his family home and local bazaar asking about his whereabouts. The RAB threatened his family.

(4)    In February 2013, with the assistance of a people smuggler, he fled Bangladesh. He has had contact with family members since then; they say the RAB still enquires about him. He fears that he will be physically assaulted, imprisoned or killed if he returns to Bangladesh. He fears harm from Bangladeshi authorities including the RAB, the police and supporters of the Awami League and fears that the authorities will not protect him.

(5)    CVO15 could not return home or relocate to another part of Bangladesh, since the RAB operate throughout the country.

4    The protection visa was refused by a delegate of the Minister for Immigration and Border Protection. CVO15 applied to the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal) for review of the delegate’s decision. CVO15 attended a hearing with the Tribunal on 4 December 2015 and two days later the Tribunal affirmed the delegate’s decision to refuse the protection visa.

Tribunal’s reasons

5    The Tribunal noted that CVO15 had provided the Department with copies of his birth certificate, marriage certificate, a letter dated 14 November 2013 from the BNP and a nationality and character certificate from the village chairman: DR[10].

6    CVO15 made new claims during the hearing before the Tribunal. The Tribunal found that there were a number of inconsistencies in CVO15’s evidence; aspects of the evidence were vague and unconvincing and it had “serious concerns in relation to his credibility and the veracity of his claims”: DR[14].

7    At the hearing, CVO15 told the Tribunal that he became a member of the village branch of the BNP in January 2012 and its secretary in 2012. This was not consistent with the information in the visa application and when this was raised with CVO15 he declined to answer. In view of CVO15’s claims to long involvement with the BNP, the Tribunal asked him questions about the BNP concerning its main principles, organisational structure, policies, the procedure to become a member and its flag, including by reference to the BNP’s Constitution. CVO15 said the BNP’s main principle was to work honestly but could not remember any others. This was not one of the four principles listed in the Constitution. CVO15 was unable to answer questions about organisational structure and when asked if he could tell the Tribunal anything about the policies of the BNP, he answered no. CVO15 said that he became a member in 2012 (his visa application said this occurred in 2010) and he was not required to do anything to become a member which was contrary to the Constitution which provided for an application and payment of a fee. When the Tribunal raised as an issue that it was concerned that he was not a member of the BNP or the secretary of the village branch, CVO15 declined to answer. When asked, CVO15 could not accurately draw the flag or describe its colours. When the Tribunal raised its concerns in relation to CVO15’s lack of knowledge about the BNP and the authenticity of the letter dated 14 November 2013, CVO15 declined to respond. The inconsistencies in CVO15’s evidence and his lack of knowledge of the BNP raised concerns about his claims to be a supporter of the BNP and member and secretary of the BNP village branch and therefore raised concerns about all of the claims that flowed from this: DR[15]-[20].

8    The Tribunal also found that CVO15’s credibility was damaged because he gave inconsistent evidence concerning when the murder of an Awami League supporter occurred and when this was put to him he failed to respond. He also gave inconsistent evidence about how many others were also accused: DR[21]. There were contradictions and inconsistencies in his evidence of for how long and where he was in hiding in Bangladesh and the evidence he gave about when and for how long he worked at the family farm between December 2011 and February 2013: DR[22]-[25]. The Tribunal was concerned about CVO15’s credibility because of new claims he made at the hearing that he had been charged with murder and that a warrant was issued for his arrest. The Tribunal told CVO15 that it had difficulty accepting that a character certificate would be issued by the village chairman if he had been charged with murder and CVO15 responded that you got the same certificate whether you were a “bad person” or a “good person” and it was the usual practice not to write down “bad things” in character references: DR[26]-[27].

9    Having considered all of the evidence, the Tribunal formed the view that CVO15 is “not a witness of truth” and that he fabricated his material claims for the purpose of obtaining a protection visa: DR[28].

10    While the Tribunal accepted that CVO15 is a Bangladeshi citizen based on his birth and marriage certificates and his fluency in Bengali, the Tribunal concluded that he was not a credible witness and it did not accept his claim to be a member or supporter of the BNP or any of his claims which flowed from that: DR[29]-[30]. It then rejected each of his material claims specifically including that he would be of any interest to the RAB, the Awami League or the members of the family of the person who was said to have been shot if he returned to Bangladesh. The Tribunal concluded that there would be no real risk that CVO15 would suffer harm or be persecuted for a Refugee Convention reason if he were to return to Bangladesh and he therefore did not meet the criterion in s 36(2)(a) of the Migration Act 1958 (Cth): DR[31]-[33]. In view of those findings, the Tribunal was also not satisfied that he met the criteria for complementary protection under s 36(2)(aa) of the Migration Act: DR[34]-[37].

Federal Circuit Court

11    CVO15 filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. He also filed an affidavit in support of that application which stated that he was a citizen of Bangladesh and his application for judicial review relied on material already filed with the Department and the Tribunal.

12    CVO15 raised three grounds of judicial review in his application to the Federal Circuit Court. Each ground had particulars relating to it. The primary judge noted that CVO15 declined to expand upon his grounds or make oral submissions in their support at the hearing of the application: J[28].

First ground

13    The first ground was (as written):

The applicant claims to fear serious harm in Bangladesh on the Conventional grounds of his actual or imputed political opinion in favour of the Bangladesh Nationalist party. Administrative Appeal Tribunal made a jurisdictional error when it failed to use real test of persecution and harm according to the Migration Act.

The primary judge summarised the particulars of this ground as being that “the Tribunal totally ignored the oral and written evidence given by the Applicant in support of his claims and that it misunderstood or misconstrued the evidence given by the Applicant”: J[23].

14    In relation to this ground, the primary judge noted that the particulars claimed that “the Tribunal raised several irrelevant issues to discredit the facts about the applicant’s involvement and position in the BNP party” but CVO15 did not identify the issues or meaningfully explain how his oral and written evidence was misunderstood or misconstrued by the Tribunal. The primary judge found that this ground “simply argues with the findings of the Tribunal and seeks a merits review which is not available in this Court” and that the decision record of the Tribunal “evidences factual and credibility findings which appear to have been rationally and logically made and were based upon facts and circumstances which were open to the Tribunal to consider and take into account”. The primary judge could not see how the Tribunal took into account irrelevant matters or that it did not comprehensively consider CVO15’s claims: J[30]. This ground therefore failed.

15    The second ground was (as written):

The Tribunal made a jurisdictional error when it discarded all the oral and written submission submitted by the Applicant in support of his claim without giving any solid evidence of cumulative credibility concern in the finding of reasons. The applicant claims he was denied procedural fairness and natural justice.

16    The primary judge noted that the particulars to this ground complained that the interpreter at the Tribunal hearing had not accurately interpreted issues raised by the Tribunal and it had not been translated accurately. It was claimed that the Tribunal intentionally asked many questions to confuse CVO15 and that he was denied procedural fairness because the hearing was not conducted freely and fairly: J[25].

17    The primary judge found that this ground has two limbs and that the first related to credibility findings. The primary judge held that the Tribunal gave proper consideration to CVO15’s claims and relevant evidence. It rejected his claims to protection on the basis of factual findings and it gave rational reasons for that rejection. The Tribunal did not commit jurisdictional error and there was no evidence that it denied CVO15 procedural fairness or that the rules of natural justice were breached: J[31]-[32].

18    The second limb related to the standard of interpretation at the Tribunal hearing. The primary judge relied on principles summarised by North J in SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260; [2010] FCA 1280 at [27] as follows:

It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that:

(a)    The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or

(b)    errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.

Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22]; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723; and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212. The judgment in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, “Appeals on Incompetent Interpreting” (2010) 20 Journal of Judicial Administration 119, at 127.

19    The primary judge noted that CVO15 had not tendered a transcript of the Tribunal hearing, notwithstanding that consent orders made on 29 January 2016 specifically provided for any evidence of the hearing to be presented as a transcript verified by affidavit. Nor did CVO15 lead any evidence from any witness or source which would enable the Court to embark upon a consideration of the standard of interpretation at the Tribunal hearing. Accordingly, there was no evidence before the Court which could lead to a finding that the Tribunal hearing was infected by any inadequate interpretation or translation so that the ground fails and must be dismissed: see J[33]-[36].

20    The third ground was as follows:

The AAT failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958 The AAT made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

21    The primary judge noted that the particulars of this ground asserted that the Tribunal totally discarded all the facts presented in oral and written evidence and again claimed that CVO15 was denied procedural fairness: J[27].

22    Noting that the third ground seemed to seek merits review of the Tribunal’s decision, the primary judge nevertheless considered the ground on the basis that it was an assertion that the Tribunal failed to give proper consideration to the complementary protection criterion pursuant to s 36(2)(aa) of the Migration Act. Understood this way, the primary judge found that the ground failed because the Tribunal wholly disbelieved CVO15’s claims for protection under the Refugees Convention and it would commit no jurisdictional error by referring to those findings of fact in dealing with complementary protection claims. Noting that that was the course taken by the Tribunal at DR[34]-[36], the primary judge relied on the decision in SZTDT v Minister for Immigration and Border Protection [2016] FCA 631 at [16] and [23] per Rares J (agreeing with the decision in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57] per Robertson J) and the decision of Marshall J in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31]: see J[37]-[42].

23    The primary judge accordingly dismissed the application: J[43].

Appeal

24    CVO15’s notice of appeal against the decision of the Federal Circuit Court contains six grounds. None of the grounds was particularised.

25    CVO15 did not file written submissions and he was not represented by a lawyer at the hearing of the appeal. The Court was assisted by an interpreter.

26    The Minister filed written submissions and appeared by his legal representative.

First ground

27    The first ground of appeal is (as written).

[The primary judge] failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to take relevant considerations because it ignored its statutory duty to review the delegate’s decision and made decision on irrelevant facts and findings.

28    CVO15 explained that although he submitted “plenty” of papers to the Tribunal, the Tribunal overlooked most of them and did not heed what was in them so that they failed to take into account relevant considerations.

29    The Minister submitted that this ground must fail because it has no proper basis. CVO15 has not identified the considerations or facts that the Tribunal failed to take into account or those that it did take into account but should not have.

30    I accept the Minister’s submission. The particulars to the first ground considered by the primary judge raised the same claims and suffered from the same defect. As is apparent from the primary judge’s reasons at J[20] and the summary of the Tribunal’s decision record set out above, the Tribunal identified the inconsistencies between CVO15’s material claims and the evidence that he gave to the Tribunal. The Tribunal’s finding that CVO15 was not a witness of truth and its rejection of his protection claims were based on its factual findings and for detailed reasons that were logical and open to it.

31    This ground fails because it does not reveal error by the primary judge or jurisdictional error by the Tribunal.

Second, third and fourth grounds

32    These grounds of appeal all relate to the interpretation issue. They are (as written):

2.    The AAT overlooked crux of the appellant’s relating to the problems of interpreting when the interpreter at the Tribunal hearing had not accurately interpreted issues raised by the Tribunal and had not translated accurately. The Appellant claims that the Bangali Language interpreter was himself confused abut the issues raised by the Tribunal and the interpreter was interpreting the whole thing. The interpreter was making himself questions of facts which the Appellant was not aware at all. Not doing a qualitative assessment of the conduct of the Tribunal may be treated as a jurisdictional error.

3.    This issue was raised in case Appellant P119/2002v Minister for Immigration and Indigenious Affairs {2003} FCAFC 230 at [17] and [22].

4.    Hon Judge raised concern but the Appellant did not had a finanancial capacity to get transcript of Tribunal hearing. During the time of hearing the Tribunal asked many questions to confuse the Applicant. The Appellant claims he was denied procedural fairness because hearing was not conducted freely and fairly.

33    In explaining these grounds, the appellant said that the problem with the interpreter at the Tribunal hearing was that CVO15 is from the Jessore District and the interpreter “must be from Chittagong or other district” and the dialects “vary very differently”. He explained that, while he understood the interpreter in these proceedings, he did not understand the accent of the interpreter at the Tribunal hearing or what he was saying. He submitted that the interpreter at the Tribunal hearing questioned some of the evidence but that was not his role and his ethics were compromised. In relation to the fact that there was no transcript in evidence, CVO15 said that he could not afford one and had not been told where he could get one.

34    CVO15 submitted that in the Tribunal hearing he was asked the same question “plenty of times” but the wording was different and he got confused and the interpreter did not help him much. That is why he says that he was not given procedural fairness.

35    CVO15 said that he could not remember what the cited case in ground three was about. He said that the person who wrote “this submission” had told him that this case related to his case but he could not remember what the issue is.

36    The Minister submitted that:

(1)    There was no evidence before the primary judge, such as a transcript, to support CVO15’s claims concerning the standard of interpretation at the Tribunal hearing.

(2)    CVO15 signed consent orders dated 29 January 2016 in relation to preparation for the hearing in the Federal Circuit Court. Order 3 relevantly provided that:

… Evidence of a Tribunal hearing, shall be presented as a transcript verified by affidavit and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.

Evidence was to be filed by 25 March 2016. The hearing took place on 16 June 2016. The appellant made no attempt at any time before the hearing to seek assistance to obtain the transcript and he did not raise the issue of financial incapacity with the primary judge. He made no submissions at the hearing before the primary judge: see J[28].

(3)    CVO15’s response to the invitation from the Tribunal to appear at the hearing indicates that he requires the assistance of an interpreter in the “Bengala” language but there is no reference to a specific dialect. The interpreter at the Tribunal hearing was at NAATI level 3, a professional standard. The hearing commenced at 8.40 am and ended at 10.25 am on 4 December 2015: see the Court Book at pp 123-127. The Tribunal’s decision record, which is the only evidence of the proceedings in the Tribunal that was before the primary judge and this Court, does not record that any issue was raised with the Tribunal member concerning the interpretation. What it does reflect is that there was meaningful discussion in respect of CVO15’s claims and that the Tribunal fairly confronted him with the concerns that it had so that he had a meaningful opportunity to present evidence and arguments.

(4)    It is clear from the Full Court’s decision in Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [18]-[20] that there was before that Court an affidavit setting out a fresh translation by a different translator of the proceedings before the Tribunal and the appellant in that case accepted that the translation was accurate. There is no such evidence here.

(5)    At J[33]-[35], the primary judge correctly cited applicable law and correctly noted that not only was there no transcript, but there was no evidence from any witness to the proceedings. There is no evidence before this Court to support this element of the grounds of the appeal and the primary judge’s reasons reveal no appellable error.

37    I accept the Minister’s submissions. There is no evidence of interpretation error. The only evidence before the Court, the Tribunal’s decision record, indicates that the Tribunal put its concerns to CVO15 and he was given the opportunity to respond to those concerns. On some occasions he responded and others he did not. The consent orders indicate that CVO15 was put on notice of how evidence of the proceedings of the Tribunal must be presented. The fact that no one told him where he might get a transcript is not relevant. Had he approached the Tribunal or the Minister’s legal representative, that information would have been readily available. As the Minister’s representative pointed out, it appears that CVO15 has had some assistance in relation to his applications to the Federal Circuit Court and the grounds of appeal. There is no evidence that CVO15 made any complaint to the Tribunal member concerning the interpretation. The decision record in this matter is a careful document and, given that, the Court would expect the Tribunal to record such a complaint had one occurred together with an explanation of why the Tribunal elected to proceed. Nothing of that nature is to be found in the decision record. I therefore conclude that CVO15 has not demonstrated any procedural unfairness on the claimed bases nor appellable error by the primary judge.

38    These grounds are not made out.

Fifth and sixth grounds

39    These grounds relate to the manner in which the Tribunal dealt with complementary protection. They are (as written):

5.    Hon Judge failed to hold that the AAT 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 did not follow Rules of Real Risk Test of Persecution and harm .

6.    The AAT decision is unreasonable with regards to Complementary Protection Provision. It failed to give real reasons when considering the complementary protection The Tribunal ignored the principles of assessing the risk of persecution related with the provision of Complementary protection criterion. Hon. Judge failed to hold that the AAT took an “unduly harsh approach” in assessing a assessing the appellant’s claims.

40    In relation to the fifth ground, CVO15 submitted that he thought the Tribunal was trying to confuse him and that it had preconceived notions and, to top it off, there was a problem with the interpreter. He says that he was denied procedural fairness so that “the matter was not solved at all”. He submitted that he does not know s 36(2)(aa) but there must be something that says that people who are at risk can get protection here. He further submitted that the assessment of the risk of persecution must have not been done correctly because a person would not risk his life coming by boat for seven days without food and sometimes without water to a new country where he does not know the law or language without being at serious risk to his life and limb. He says that he has not been correctly heard, and that is what he means by a harsh approach.

41    The primary judge correctly identified relevant authorities in relation to the propriety of a Tribunal relying on factual findings made in relation to Convention (or s 36(2)(a)) criteria in determining complementary protection (or s 36(2)(aa)) claims. I take that to be the issue that CVO15 identifying when he speaks of “preconceived notions”. In this case, the claims were co-extensive. The Tribunal had found that CVO15 was not a BNP supporter, member or officeholder. It rejected the claims that flowed from that: that CVO15 had been a suspect in a murder and that he was of interest to the Awami League, the RAB or members of the alleged victim’s family. Those findings were dispositive of both the Convention based claims and the complementary protection claims.

42    Insofar as CVO15 claims that the Tribunal tried to ‘confuse’ him at the hearing through its questioning (a claim which also appears to be raised in grounds 2 and 4 of his notice of appeal), no error is made out. Although the decision record makes it clear that the Tribunal extensively questioned CVO15 about his connection with the BNP and inconsistencies in his evidence (see for instance, DR[15]-[20] referred to at [7] above), there is no evidence that the Tribunal’s questioning was designed to confuse CVO15. Instead, the decision record shows that the Tribunal sought to provide him with an opportunity to comment on inconsistencies in his evidence before the Tribunal made a credibility finding adverse to him.

43    Accordingly, the primary judge did not err in dismissing the third ground of CVO15’s application to the Federal Circuit Court for the reasons that he gave.

44    In relation to the other matters raised by CVO15 in submissions in relation to these grounds, the issue of procedural fairness has been dealt with above and his submission questioning why anyone would come to Australia in the circumstances that he did without fearing serious harm in Bangladesh seeks impermissible merits review.

45    These grounds also fail.

Conclusion

46    For these reasons, the appeal should be dismissed with costs.

Associate

Dated:    24 October 2018