FEDERAL COURT OF AUSTRALIA

BAQ16 v Minister for Home Affairs [2018] FCA 1772

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The appellant is a Bangladeshi man who arrived in Australia on 6 May 2013 as an irregular maritime arrival. On 16 August 2013, he lodged an application for a Protection (Class XA) visa. On 14 November 2014, a delegate of the first respondent refused this application. On 8 December 2014, the appellant commenced review proceedings in the Administrative Appeals Tribunal (the “Tribunal”). His case was heard on 6 April 2016. On the same day, the Tribunal affirmed the delegate’s decision. The appellant then sought judicial review of that decision in the Federal Circuit Court of Australia. On 7 May 2018, that application was dismissed and the appellant now appeals that decision to this Court.

Background

2    The appellant’s claim to fear harm arises from his and his family’s membership of the Bangladesh Nationalist Party, a political party in Bangladesh, and a claim that in 2011 he was physically assaulted by members of the Awami League, the political rivals to the Bangladesh Nationalist Party. After this incident the appellant says he went into hiding. His claim to fear harm also arises, it is said, from being a member of a group that holds information adverse to the interests of the Awami League, and from being a member of another group, being business owners who have links with the Bangladesh Nationalist Party.

Proceedings before the Tribunal

3    In simple terms, the Tribunal did not believe the appellant was telling the truth. There were too many significant inconsistencies, it reasoned, in his evidence for him to be believed. Thus, in relation to the incident said to have taken place in 2011, the appellant gave evidence about this which differed significantly from the account he had given about it in his statutory declaration. For example, in one account he said two men had approached him, on another occasion he said it was four men. He said on one occasion he had been beaten up twice, and on another he said it was only once.

4    At [11] of the reasons of the Tribunal, it records that it put to the appellant that the evidence given by him in his declaration and his evidence to the Tribunal were inconsistent. In response, the appellant said that the account he had given the Tribunal was correct. He said that he gave a different account in his declaration because his brain did not work at that time and he had made a mistake. The Tribunal found at [15] that the appellant’s evidence about the harm he suffered in Bangladesh was “mobile and inconsistent”.

5    In relation to another claim made before the Tribunal, the appellant said that after he fled from his native village, and while he was hiding at the home of his sister, people from the Awami League went to his family home and asked his parents where he was. The Tribunal found that this was a different account from that previously given in his statutory declaration. In that declaration the appellant had made no mention of anyone going to his family home to look for him after he had fled his village. In contrast, he told the delegate that people from the Awami League did go to his family home to find him on one occasion, but this was after he came to Australia.

6    When these discrepancies were put to the appellant by the Tribunal, the appellant said he could not exactly recall what had happened, but that the account he had given to the Tribunal was correct. He said that it had been a while since the events in question had occurred, and that was why there had been differences in his statements. At [17] of its reasons, the Tribunal said that it did not accept that any lapse in time could explain the appellant’s inconsistent evidence about the isolated visits to his family home by people he claimed wished to harm him upon his return to Bangladesh.

7    In relation to the appellant’s claimed political activities, he gave evidence before the Tribunal that about 15 years ago he started supporting the Bangladesh Nationalist Party. He gave evidence he would attend party meetings held every week, fortnightly or once each month and call others to come and go to those meetings. Further, he said that at election time he would go with a party leader to people’s homes and tell them to vote for the party. This was inconsistent with the evidence he had given to the delegate. The delegate asked the appellant what he actually did to support the Bangladesh Nationalist Party, and the appellant said that he did not do much. The Tribunal noted that the delegate then asked the appellant whether he was involved in any political activities involving the Bangladesh Nationalist Party, and in response the appellant said “no”. The Tribunal again put to the appellant that his evidence about supporting the Bangladesh Nationalist Party to the Tribunal and to the delegate was inconsistent. The appellant said that his account to the Tribunal was the correct version and he had just made a mistake by not advancing that evidence to the delegate. At [20] the Tribunal found that the appellant’s evidence on this matter was inconsistent and that it reflected poorly on his credibility.

8    The appellant also gave inconsistent evidence about his family’s involvement in politics. In his statutory declaration the appellant said that his family and he were all supporters of the Bangladesh Nationalist Party. When the Tribunal questioned the appellant about what political parties his father and brother supported, he said that his father supported the Jamaat-e-Islami, and he said his two older brothers who live with his parents supported the Bangladesh Nationalist Party. Again, the Tribunal found that the appellant’s evidence was inconsistent with what he had previously said in a statutory declaration and no adequate explanation had been provided by him for such discrepancies.

9    The Tribunal made the following general finding about the appellant’s credibility at [25]:

Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims that he supported and undertook activities for the [Bangladesh Nationalist Party (the “BNP”)] and that he was approached by people from the Awami League who tried to extort money from him and beat him. Accordingly, the Tribunal disbelieves the applicant’s claims that he left his native village; that he went into hiding in fear of harm from the Awami League and that anyone from that party went to his family home looking for him.

Because of the inconsistencies in evidence, and the Tribunal’s inability to accept the credit worthiness of the appellant, it made the following conclusion at [31] of its reasons for decision:

There is no credible evidence that the applicant or any member of his family suffered harm in Bangladesh. There is no credible evidence that anyone in Bangladesh seeks to harm the applicant. There is no credible evidence as to why the applicant left Bangladesh and why he does not want to return there. The only ground on which he claimed protection was his fear of harm from the Awami League because of his support for the BNP, claims the Tribunal finds to be false. Accordingly, for all of these reasons, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Bangladesh and he does not hold a [well-founded] fear of persecution based on any convention ground.

It followed that the Tribunal did not accept the appellant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth) (the “Migration Act”).

10    The Tribunal next considered the claims concerning complementary protection. At [32] of its reasons for decision, it said that for the finding already given in relation to the appellant’s creditworthiness, it found that there was not a real chance that he would suffer serious harm in Bangladesh, and it also found that there was not a real risk that the appellant would suffer significant harm. The Tribunal accordingly rejected the claim made pursuant to s 36(2)(aa) of the Migration Act.

Proceedings before the Federal Circuit Court

11    Before the Federal Circuit Court, the appellant relied upon five grounds of review which were set out at [15] in the judgment of the learned primary judge, and are as follows:

[1] The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Nationalist Party prior to my departure from Bangladesh.

[2] The Honorable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection [(the “DIBP”)] to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refused my application.

[3] The Administrative Appeals Tribunal Officer made error to find that the Department of Immigration and Border Protection failed to accept that the persecutions experienced in Bangladesh and I shall be imprisoned and tortured if returned to Bangladesh. The Tribunal refused my claim on the ground that I am not a credible witness for my claims though I presented all relevant documents and evidences in support of my claims before the Tribunal prior to hearing.

[4] The Administrative Appeal Tribunal officer erred in not finding that the DIBP erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and I do not meet the criteria set out in s 36(2) of Protection Visa.

[5] The Administrative Appeals Tribunal officer erred in not finding that the DIBP refused my application on the ground that I would face punishment would be completely politically motivated.

[Errors in the original.]

12    Ground one was rejected as being merits review.

13    Ground two was rejected as being only a grievance that the Tribunal did not find that the appellant had been physically attacked.

14    Ground three was rejected on the same basis. There was nothing before the court to indicate that the Tribunal had not taken into account all of the appellant’s evidence, both oral and written.

15    Grounds four and five were also rejected as they were found by the primary judge to be similar to ground three, and therefore were rejected for similar reasons.

Appeal Grounds

16    Before me, the appellant relied upon two grounds of appeal which were expressed in the following terms:

1.    The Administrative Appeals Tribunal’s decision affected by jurisdictional error.

Particulars:

The Administrative appeals tribunal failed to consider a claims or integer of claims and failed to consider whether applicant had a well-founded fear of persecution in the reasonable foreseeable future upon return to his own country of origin. The Tribunal had no jurisdictions to make such decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958. The Tribunal denied the applicant procedural fairness by reaching conclusions that the applicant is not a credible witness and his claims were implausible. The Tribunal member in his decision records did not ask any conventions relation questions whether the applicant had fear of persecution in his own country of residence.

2.    The Administrative Appeal Tribunal made findings without evidence. The Administrative Appeals Tribunal rejected the applicant’s evidence before the Tribunal and failed to believe the applicant as a credible witness, such failure constituted a breach of s425 of the Migration Act 1958 (Cth).

Particulars

The tribunal in her decision records and interview records failed to consider any evidence put by the applicant as credible, believable without any evidence. The honourable member has discredited the evidence just only the applicant’s inability to remember or recall various issues and the dates at the time of hearing.

[Errors in the original.]

17    Some of these alleged errors overlap with other errors. Some also appeared to be new, although the first respondent made no objection about that. None of the grounds identified an error or errors in the reasons for judgment of the learned primary judge. In that respect, I agree with the written submission of the first respondent that the task of this Court in exercising appellate jurisdiction is to determine whether the judgment of the primary judge was affected by any appellable errors: DRP16 v Minister for Immigration and Border Protection [2018] FCA 1522 at [18].

18    However, given that the appellant was not legally represented, I have beneficially construed the alleged errors contained in the notice of appeal as possible errors which the Federal Circuit Court should have found in the reasons of the Tribunal, and thus as potential errors of the Federal Circuit Court.

19    Before me, the first respondent was represented by Mr Gao, who relied upon his written submissions and also made a series of oral submissions. The appellant filed no written submissions and made no oral submissions. He did not amplify upon the spartan and, in my view, very general grounds of his appeal. As he was not legally represented, that is understandable and regrettable.

Disposition

20    The first respondent submitted in his written submissions in relation to the first particular of ground one at [20]-[22] as follows:

[The] generic assertions are not supported by any reference to the Tribunal’s reasons for decision. In any event, ground 1 cannot succeed for the following reasons. First, it is apparent from the Tribunal’s reasons for decision that it did consider the totality of the appellant’s claims but did not accept them due to its credibility concerns: AB Tab 2, pp 117, 119−121 at [8]−[9], [16], [21], [29]. In circumstances where the Tribunal rejected the appellant’s claims, it was not required to consider the appellant’s specific claims of fearing harm by reason of his membership of the particular social groups: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].

Secondly, the Tribunal applied the correct law in reaching its decision. A fair reading of the Tribunal’s reasons for decision suggests that having found that the appellant had manufactured his claims for protection, the Tribunal was not satisfied that he would be harmed in Bangladesh for any reasons. In making those findings, it is apparent from the language used by the Tribunal that it correctly assessed the appellant’s claims under the refugee criterion and complementary protection criterion in s 36(2) of the Act. It is also clear that the Tribunal expressly referred to the Refugee Convention in reaching its decision: AB Tab 2, pp 121−122 at [31]-[32].

Lastly, the Tribunal did not deny the appellant procedural fairness in the conduct of its review. The Tribunal’s obligation to accord the appellant procedural fairness is specified in Part 7, Div 4 of the Act. Importantly, the Tribunal was required to put to the appellant information that would be the reason, or part of the reason, for affirming the decision under review: see s 424A of the Act. While it is true that the Tribunal disbelieved the appellant and rejected his claims on that basis, it is well settled that the definition of ‘information’ in s 424A of the Act does not extend to inconsistencies in the appellant’s evidence, or subjective appraisals or thought processes of the Tribunal: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. As a result, the Tribunal was not required to put its credibility concerns to the appellant for comment under s 424A of the Act.

I generally agree with those submissions.

21    Before me, the first respondent properly raised the possibility that the Tribunal had overlooked the appellant’s claims arising from his membership of the two social groups earlier mentioned. The first respondent relied upon, in that respect, the well-known passage in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47], which is as follows:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

22    The first respondent submitted that the rejection of the appellant’s credit and the rejection of his evidence at, for example, [25] of the Tribunal’s reasons, was a necessary rejection of all of the factual substratum of all of the appellant’s claims. No other specific claims relating to membership of the two social groups had been advanced. It followed on this submission that the claims concerning membership of the two social groups had been subsumed within a much more general rejection of the appellant’s evidence. That submission should be accepted.

23    In relation to the claim that the Tribunal had failed to consider whether the appellant had a well-founded fear of persecution, the first respondent submitted that this ground really involved an attack on the findings made about the appellant’s credit. He submitted that the Tribunal was not required to accept the appellant’s evidence uncritically, and he referred to the decision of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

24    Findings made about the credit of an appellant are not necessarily immune from judicial review and can contain jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78], where Robertson J stated:

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

25    The general rule, however, is that it is for the Tribunal to assess the credit of the appellant and to determine what weight should be given to his or her testimony: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485. In my view, the Tribunal here carefully reviewed the evidence given by the appellant before it and analysed that evidence in the light of earlier statements the appellant had given. The findings of credit made, largely arising out of inconsistencies in the appellant’s evidence, were findings which the Tribunal was entitled to make. This particular is rejected.

26    In relation to the claim that the Tribunal had no jurisdiction, which is perhaps a reference to power or authority, it was submitted that it had not reached its conclusion in accordance with the provisions of the Migration Act. No provisions were specified. In my view, the Tribunal correctly applied the tests contained in ss 36(2)(a) and 36(2)(aa).

27    In relation to the claim that the appellant was denied procedural fairness because adverse conclusions were made concerning his credit, I observed that the Tribunal very carefully put to the appellant the inconsistencies in his evidence. Moreover, the appellant should have known before giving evidence to the Tribunal that, having regard to the reasons of the delegate, his credit was in issue. I otherwise accept the submission of the first respondent that there was no obligation pursuant to s 424A of the Migration Act to disclose to the appellant the Tribunal’s subjective conclusions concerning those inconsistencies: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18].

28    I finally reject the particular in which it is contended that the Tribunal member did not ask any convention-related questions concerning the appellant’s fear of persecution. The Tribunal correctly applied, as already mentioned, the test set out in s 36(2)(a) of the Migration Act, and expressly referred to the Refugees Convention at [31] of its reasons for decision.

29    The first ground of appeal is rejected.

30    The reference in the second ground of appeal to s 425 of the Migration Act is new. Section 425 provides:

(1)    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.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

31    In my view, there was no breach of s 425. The appellant gave evidence before the Tribunal and was present before it for the purposes of making submissions. At that hearing, as already mentioned, inconsistencies in his evidence were expressly put to him and he was invited to give, in each case, an explanation for those inconsistencies. He was not denied procedural fairness.

32    In the particulars for the second ground of appeal, the appellant makes the further contention that the Tribunal should have treated the inconsistencies in evidence as turning merely upon the appellant’s inability to remember or recall various issues and dates at the time of the hearing. In my view, that ground invites the Court to reconsider the merits of the Tribunal’s findings of fact and findings about credit and for that reason should be rejected. The second ground of appeal is therefore rejected.

33    It follows that the appeal should be dismissed with costs as agreed or assessed.

Associate:

Dated:    4 December2018