FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appeal is dismissed.
3. The appellant is to 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.
1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 18 May 2018 wherein it dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 3 March 2016. The application for review to the FCC was in respect of a decision of the delegate of the first respondent (the Minister) to refuse the appellant a protection visa.
2 Although the appellant was directed to provide written submissions in support of his appeal, what he has in fact done is file and serve a document which is a reiteration of the terms of a proposed Amended Notice of Appeal. It provides very little in the way of submissions and merely makes assertions about alleged errors committed by the Tribunal and the FCC’s failure to identify them.
3 The appellant is a citizen of Bangladesh. He arrived in Australia as an unauthorised arrival in 2013. He applied for a protection visa on 26 July 2013 with the assistance of a registered migration agent.
4 Accompanying his application for a protection visa was a statutory declaration dated 26 July 2013 in which he claimed fear of harm on the basis of his political opinion. The foundation of his claim was that since leaving school he had been a member of the Bangladesh National Party (BNP), had acted in several roles for it and had engaged in many political activities to advance its cause. He asserted that he had been attacked by supporters of the opposing Awami League (AL) and his family have been harassed and monitored by them. He further alleged he had been falsely accused of being involved in the arson of a bus in December 2012 and had been attacked on a second occasion during which he was beaten and stabbed. Ultimately, he claimed to have left Bangladesh in February 2013 through Dhaka Airport using a false passport.
The Tribunal’s reasons
5 The Tribunal was not satisfied the appellant had established any substantive aspect of his claims despite having provided various documents which, apparently, supported them. It relied upon a number of core issues which undermined the appellant’s credibility or the veracity of the events on which his claims were based. This included an array of implausible statements and inconsistent accounts of what he said occurred whilst he was in Bangladesh. The Tribunal determined that the appellant’s claims did not satisfy the requirements of either the Convention grounds or the Complementary Protection grounds so as to entitle him to a protection visa.
Application to the Federal Circuit Court
6 The appellant applied to the FCC on 30 March 2016 for review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). The grounds advanced were:
1. The Second Respondent miscalculated the claims and an error in deciding the fate of the application;
2. The Second Respondent’s made the decision without any basis or information and has not considered the current situation prevails in Bangladesh.
3. The Second Respondent made a findings which were based on misconception, illogical and without any authorities.
[Errors in original]
7 It is apparent the appellant considered that the grounds of review as originally drafted were inadequate. On 12 May 2016 the Registrar of the FCC made orders permitting him to file any amended application and further affidavit. As it transpired no further documents were filed. On 6 October 2016 the Registrar made a further order giving the appellant an additional opportunity to file and serve an amended application. He was to file and serve it by 21 October 2016. It does not appear that any further amended application or, indeed, any supporting material, was filed prior to the hearing before that Court.
8 On the last business day prior to the hearing before the FCC the appellant, by his Counsel, provided submissions which indicated the appellant would seek leave to rely upon an amended application, a draft of which was attached to those written submissions. When the matter came on for hearing the Minister opposed the grant of any such leave.
9 The learned primary judge observed that the appellant provided no evidence to explain why he had waited for nearly two years before seeking leave to amend his application. When he determined to do so he provided the Minister with only one clear day’s notice before the matter was due to be heard. Despite that, the Minister indicated that although leave was opposed, he was content for the hearing of the application to amend to proceed on the basis of the merits of the proposed new ground.
10 The ground of review in the proposed amended application was in the following terms:
The applicant claimed that on 17 February 2013 he departed Bangladesh through Dhaka airport using a false passport (CB 22) This is likely to be an offence in Bangladesh, for example a contravention of s7(3) of the Emigration Ordinance Act 1982. In the circumstances, a question in considering the applicant’s claim for a protection visa is whether the applicant would suffer persecution or significant harm if required to return to Bangladesh. The Tribunal failed to consider these questions. This failure involved jurisdictional error.
Reasons of the primary judge
11 The primary judge refused leave to amend the application. He did so on the basis the appellant had not provided any evidence to explain the delay in seeking leave to amend and, further, that the proposed ground lacked sufficient merit.
12 At the hearing before the FCC, Counsel appearing for the appellant indicated the grounds of review in the original application had not been abandoned, however, he also stated that no submissions would be made in support of them or in explanation of them. The learned primary judge correctly identified those grounds as being broad and general, without particulars and were, by the end of the hearing, unexplained. The learned judge also correctly concluded that the failure of Counsel to advance any foundation for such generalised grounds was tantamount to abandoning them and that would be sufficient to warrant their rejection.
13 Without necessarily referencing the present case, it is inconsistent with the obligations of legal practitioners and litigants imposed by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) to advance a case which they are not prepared to support by submissions. Such conduct is not consistent with the obligation to ensure “the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload or the disposal of all proceedings in a timely manner” as required by those sections. Further, in an adversarial process, the obligation of the Court is to determine the merits of the matter assisted by the submissions made by the parties in support of a conclusion in their favour. That system is not one in which the parties can merely state the nature of their case and invite the Court to fashion the arguments which might support it. In this matter, the learned judge below was correct to identify that the grounds in the original application for review might be dismissed on the basis that the appellant had not sought to support them in any way.
14 Despite being fully entitled to dismiss the original grounds in stanta, his Honour sought to grapple with them and, in doing so, construed them in a manner which was the most favourable to the appellant. Nevertheless, he determined they were without merit and none of them revealed any jurisdictional error.
15 Ground one amounted to no more than an expression of disagreement with the conclusions of the Tribunal and his Honour correctly rejected it.
16 The second ground was that the Tribunal’s decision was made “without any basis or information” and that it was made without consideration of the current situation in Bangladesh. The primary judge correctly concluded that there was a clear evidentiary basis for the Tribunal’s decision, being that the appellant’s evidence was disbelieved because it was inconsistent and his explanations were implausible. That being so there was nothing to support the claims which the appellant advanced as entitling him to the grant of a protection visa. The primary judge also found that the Tribunal’s determination as to the appellant’s credibility was logically sound and based on rational grounds.
17 As to the suggestion that the Tribunal was unaware of the current circumstances in Bangladesh, it was observed that the Tribunal referenced the current Country Information on which it relied. In particular, it considered the risk of harm faced by BNP members. However, as it had been determined that the appellant was not a BNP member, the question of him suffering harm because of his political associations was not relevant.
18 Ground three was also rejected as there was nothing in the reasons of the Tribunal which would indicate irrationality, unreasonableness or illogicality on its behalf. As mentioned, there was no articulation of the basis of this ground and no basis for it appears on the face of the decision.
Appeal to this Court
19 The appellant filed a Notice of Appeal to this Court on 4 June 2018. In it he identified three grounds which, taken at their highest, seem to assert that the FCC failed to determine that the Tribunal had made three jurisdictional errors. It would appear that the alleged jurisdictional errors were not errors which were advanced to the FCC. The proposed new grounds have been accurately identified in the Minister’s submissions as being:
(a) the FCC erred in failing to find that the Tribunal had failed to properly consider the claims and documents of the Appellant (Ground 1);
(b) the Tribunal: (a) failed to give realistic and genuine consideration to the Appellant’s documents and failed to engage in an active intellectual process (Ground 2A); (b) failed to assess all of the Appellant’s claims and consider them individually and cumulatively (Ground 2B); and (c) failed to consider the Appellant’s perceived involvement against the BNP by the Australian BNP members (Ground 2C); and
(c) the FCC erred in failing to find that the Tribunal failed to consider relevant considerations, namely, the Appellant’s departure on a false passport (Ground 3).
Leave is required
20 The first respondent submitted that the proposed grounds of appeal are “new grounds” which were not advanced before the primary judge, with the consequence that leave is required for each of them to be agitated on appeal. That submission ought to be accepted. It appears that ground one, to the effect that the claims and documents of the appellant were not considered, did not form the substance of any ground advanced by the appellant to the FCC. The appellant acknowledges that ground two is a new ground. Ground three is a ground which was considered by the FCC in the context of determining whether or not to permit it to be advanced on the application for review. The FCC determined that leave should not be granted to amend the application to allow that ground to be advanced. Hence, technically, this ground too is a new ground.
21 The well settled principles applicable to determining an application for leave to rely upon a ground of appeal not advanced before a primary judge were identified by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at -:
In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. 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) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at – and .
In Coulton v Holcombe (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.
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.
22 The Minister submitted that it was not in the interests of justice to permit the appellant to raise the new grounds on appeal and he advanced a number of arguments in support.
23 First, it was said that no adequate explanation had been provided for the failure to raise these points below. There is substantial merit in that submission. The appellant was represented by Counsel before the FCC and the arguments advanced on his behalf were obviously considered. The Court simply does not know whether the arguments now sought to be advanced were considered and disregarded or were not thought of at the time. The absence of an explanation is concerning. This point is exacerbated by the appellant’s desultory pursuit of his application for review and his failure to amend the grounds of the application over a period of two years despite being given the opportunity to do so.
24 Secondly, the proposed new grounds of appeal seek to impose upon this Court the obligation to perform the trial court’s function: AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at ; CWD16 v Minister for Immigration and Border Protection  FCA 578 at , -: which will have the effect of defeating the statutory scheme in relation to judicial review applications in respect of protection visas: SZWCO v Minister for Immigration and Border Protection  FCA 51 at -. This is not a case where the new issues sought to be agitated have arisen from either the appellant’s submissions or the Minister’s response to them. In such cases where the “new” grounds emerge out of and are connected with the existing grounds, a more lenient approach can be taken. Here, the attempt to advance new grounds of review gives the appearance of the appellant fishing around for any conceivable basis for an appeal regardless of its merits.
25 Thirdly, it was submitted that to allow the appeal would be contrary to the timely and effective disposal of litigation in an important area of public law which is a matter of significant public interest: SZWCO v Minister for Immigration and Border Protection  FCA 51 at . Whilst there is some force in that submission, the parties are before the Court and the judicial resources are already devoted to its resolution. That being so this submission has less weight than might otherwise be the case.
26 It ought be identified that, quite properly, the Minister did not submit that he would suffer any prejudice if the proposed grounds of appeal were allowed. That is, of course, putting to one side the prejudice which naturally arises from delays in public administration which are best avoided.
Merits of the proposed grounds
27 Despite the obvious force in the above submissions on behalf of the Minister, it is appropriate to consider the merits of the proposed grounds.
28 The Minister correctly submitted that in the proposed Amended Notice of Appeal the appellant failed to particularise either the claims or documents which the Tribunal is said to have failed to properly consider and the manner in which the primary judge erred in failing to detect the Tribunal’s error. Nothing which was advanced by the appellant during the course of the hearing clarified that position. As the Minister also correctly submitted the Tribunal’s decision identified the appellant’s claims and the basis for his alleged fear of persecution or risk of harm were he to be returned to Bangladesh. It identified why the appellant’s evidence was not plausible, was inconsistent and was not credible. It identified what it said were nine core areas where it had concerns about the veracity of the information provided to it and the appellant’s evidence. Each such concern was rational and properly considered by the Tribunal.
29 In his written submissions the appellant submitted the Tribunal gave too little weight to documents which he had provided and that it did not consider them save to refer to the prevalence of the production of fraudulent documents in Bangladesh. It would appear that the documents to which the appellant was referring related to what he said were false charges against him concerning the arson of a bus during which people were killed. The documents include papers which purport to be charge sheets, warrants and an order of attachment. The Tribunal considered all of these documents but observed that the deficiencies in the appellant’s evidence were “very significant”, the documents were produced very late in the visa application process and fraudulent documents are easy to obtain in Bangladesh. It concluded that it could give the documents little weight in the circumstances. It held:
59. The cumulative impact of the deficiencies in the evidence identified are such that the Tribunal is not in a position to be satisfied as to any substantive aspect of the applicant’s claims, despite the documents provided.
30 The Tribunal found that the appellant was not active in the BNP and was not satisfied that he had been falsely accused of being involved in an arson attack on a bus in December 2012. Necessarily, the determination of the first matter substantially undermined the likelihood of the second being established, it being suggested that the bringing of false charges was politically motivated.
31 The Tribunal did not fail to consider the documents provided to it by the appellant. It considered their content and their relevance in the context of his claim. However, because of its conclusion that he was not and had not been a BNP member or politically active the documents were not likely to be genuine. It cannot be said that the Tribunal failed to give the documents any realistic or genuine consideration or failed to engage in an active consideration of them. On the contrary, it provided logical and rational reasons as to why it would give them little weight.
32 It follows that there is no merit in the proposed new ground one.
33 This ground is that the Tribunal failed to give a realistic and genuine consideration to the appellant’s documents and failed to engage in an active intellectual process in relation to his claims. This assertion does not withstand scrutiny. It is plain on the face of the Tribunal’s reasons that it referred to each of the documents provided by the appellant. As the Minister correctly submitted, the appellant did not appear to contend otherwise. The appellant utilised every opportunity given to him to provide documents to the Tribunal. Indeed he was afforded the opportunity to provide further documents after the hearing. That said, the Tribunal did warn the appellant of its understanding of the ease at which it was possible to obtain fraudulent documents in Bangladesh. It is also relevant that the appellant’s representative, who appeared before the delegate, was cautious of the weight which might be attributed to documents provided by the appellant.
34 It must also be kept steadily in mind that the Tribunal’s decision was founded upon its conclusion as to the appellant’s lack of credibility. The Tribunal clearly enunciated its reasons for that conclusion and, as was noted by the learned primary judge, there was an evidentiary basis for its decision; namely, its disbelief of the appellant’s evidence. Nothing advanced by the appellant in this matter, either orally or in writing, undermined any of the Tribunal’s conclusions with respect to his credibility. Given the Tribunal had reached a solid conclusion that the appellant’s evidence was unreliable and unpersuasive, it was also able to conclude that it was not satisfied the documents advanced satisfactorily corroborated the appellant’s claims or they outweighed the credibility concerns which it held. It is clear on the face of the Tribunal’s reasons that it gave proper, realistic and genuine consideration to each of the documents as well as the claims and evidential facts to which they were directed.
35 The Tribunal also identified its concerns as to the unexplained delay in the provision of documents by the appellant. This was significant in light of the ability to obtain fraudulent documents in Bangladesh. It is noted that footnote 8 at  of the Tribunal’s reasons listed the vast array of respected Country Information which attested to the high level of fraudulent documents and corruption in Bangladesh. The Tribunal was entitled to be sceptical of the lately produced documents.
36 It follows that there is no sufficient ground to support the submission that the Tribunal did not consider the relevant documents and information before it.
37 This ground, being that the Tribunal failed to assess all of the appellant’s claims and consider them individually and cumulatively, appears to be directed at an alleged error by the Tribunal in failing to consider an independent claim that the appellant held a political opinion opposing the AL. As the Minister submitted, the appellant’s outline suggests that he acknowledges that such a claim was not “expressly articulated by him”. Before the Tribunal the appellant was professionally represented and, so the submission goes, it follows the Tribunal was only required to consider those claims which were expressly articulated before it: SZULW v Minister for Immigration and Border Protection  FCA 1335 at -. Whilst there is substantial force in the Minister’s submission it is not necessary to decide this ground on the principle of decision.
38 The Tribunal did consider the potential threat to the appellant from members of AL. That was a claim which he had advanced on the basis of his claimed association with, and active involvement in, BNP. He did not claim fear of harm from AL for any other reason. However, the Tribunal found that the appellant had no connection with BNP which would make him a target of AL. Indeed, it specifically found that it was not satisfied that AL members might have caused trouble for the appellant’s family’s land due to the appellant’s profile or otherwise. In these circumstance it is impossible to conclude that the Tribunal did not consider the appellant’s claimed fear of harm from AL.
39 In any event, as the Minister correctly submitted, the appellant did not identify any document or material from which some independent claim of fear of harm from AL can be regarded as being “sufficiently raised” or as “clearly arising”.
40 It necessarily follows that this proposed ground of appeal also has no merit.
41 By this ground the appellant submitted the Tribunal erred by failing to consider his claim to fear harm due to perceived conduct contrary to the interests of the BNP and perceived support for AL. This submission should also be rejected.
42 From paragraph  of the Tribunal’s reasons it identified why such a claim was not maintainable. Although this claim was raised before the Tribunal, after the hearing the appellant provided a favourable letter of support from the President of the Kalkini Branch of the BNP which post-dated the interview. As the Tribunal reasoned, this indicated that, at the time of the provision of the letter by the appellant, the BNP did not have any ill feeling towards him. On the contrary the letter showed that it regarded him well. Moreover, the appellant’s explanation for that significant inconsistency tended to suggest that the BNP did not suspect him of leaking information. As the Tribunal concluded, if the situation had been explained to the senior members of the BNP and they accepted that explanation followed by writing a letter of support for him, he could hardly fear harm from them because they might believe that he was betraying them. The necessary consequence was that the claim was not credible in light of the information provided by the appellant. The explanation provided by him was somewhat confused and lacked rationality as the Tribunal determined.
43 To the extent that this ground also gave rise to a claim under the Complementary Protection provisions, the Tribunal was entitled to rely upon its reasons and findings as it has already stated in relation to the Convention grounds: Minister for Immigration and Border Protection v DDK16  FCAFC 188 at . In this case, the Tribunal’s process was to make findings of fact in relation to all of the grounds advanced and apply those findings to the claims advanced under s 36(2)(a) and s 36(2)(aa). The facts as found did not satisfy the criteria in either of those sections.
44 The third ground sought to be agitated by the appellant was that the Tribunal did not consider whether he might be persecuted or punished for departing Bangladesh using a false passport. He had sought to raise this ground before the learned primary judge who determined that it lacked sufficient merit for leave to amend the application for review.
45 The appellant argued that the material before the Tribunal exposed an unarticulated claim that he had a fear of harm from the above circumstances. It was submitted that the evidence before the Tribunal was that he had departed Bangladesh using a false passport. So the argument goes, the Tribunal should have been aware that such conduct would be likely to be an offence in Bangladesh under s 7(3) of the Emigration Ordinance Act 1982 (Bangladesh) and, it is assumed, with the consequence that he would be punished on his return. Before the learned primary judge the appellant acknowledged that he had not advanced any expressed claim to the Tribunal to this effect.
46 It cannot be doubted that there was no “substantial, clearly articulated argument relying on established facts” advanced to the Tribunal in relation to this claim: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). However, the appellant relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, - (NABE (No 2)). There the nature of the obligation of the Tribunal was identified in a slightly opaque manner as follows:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected” - Applicant WAEE (at ). But as the Full Court said in WAEE (at ):
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant's son to a Muslim woman although it made reference to the claim in its overview of the appellant's case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
47 Of course, once the Tribunal’s obligation extends beyond the consideration of the arguments or claims which are clearly articulated in reliance on established facts, the boundaries of its obligations became obscure. Nevertheless, the apparent disconformity between NABE (No 2) and Dranichnikov need not be considered here. In this case no claim of a fear of persecution founded upon the appellant using a false passport to depart Bangladesh was raised on the material, even obliquely or implicitly.
48 As the learned primary judge found, there was an absence of any express claim to the above effect by the appellant during any part of the visa application processes. Secondly, although a reference was made to the departure on the alleged false passport, no reference was made to the emigration laws of Bangladesh or to any penalties which might attach to a contravention. Thirdly, and significantly, the appellant did not suggest that he feared any particular harm were here to be returned to Bangladesh as the receiving country by reason of his unlawful departure. Fourthly, it is well accepted that punishment for a criminal offence is not, of itself, relevant harm or persecution under either the Convention provisions or the Complementary Protection provisions.
49 It follows that the Tribunal did not overlook any unarticulated or implicit claim under either the Convention provisions or the Complementary Protection provisions. The appellant made no claim to fear harm or persecution from the fact that he had left his country unlawfully on a false passport. No such claim arose expressly or clearly or even implicitly from the material before the Tribunal.
50 A further argument advanced was that the Tribunal had indicated in its reasons the appellant’s claim had failed for the reasons identified “or for any other reason”: at  and . Much was sought to be made of that rider to the determination. However, it is pellucid that such additional words amounted to no more than an emphatic statement that the Tribunal could find nothing on the material before it which might warrant allowing the appellant’s application for a protection visa. There is nothing to be derived from the use of those words as a rider to the Tribunal’s reasons.
51 It follows that ground three has no merit either.
52 The result of the above is that there is an absence of any merit in any of the proposed new grounds of appeal sought to be advanced by the appellant.
53 It might also be added that given the manner in which the proceedings have been conducted by the appellant, with the occasional assistance of Counsel, the absence of any explanation as to why the proposed new grounds were not advanced earlier would be a significant hurdle for the appellant even if any of the grounds contained some merit.
54 The result is that the application for leave to amend the Notice of Appeal is refused. The appeal is dismissed. The appellant is to pay the first respondent’s costs of the appeal.