FEDERAL COURT OF AUSTRALIA

BXY16 v Minister for Immigration and Border Protection [2018] FCA 1778

ORDERS

THE COURT ORDERS THAT:

1.    The oral application to file additional evidence in the appeal be refused.

2.    The 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

COLLIER J:

1    Before the Court is an appeal from a judgment of the Federal Circuit Court made 16 May 2018 dismissing the appellant’s application for judicial review of an decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (Tribunal) that affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (delegate) to refuse to issue a Protection (subclass 866) visa (protection visa) to the appellant pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

Background

2    The appellant is a citizen of Bangladesh and arrived in Australia as an irregular maritime arrival on 6 December 2012. On 12 April 2013 he made an application to the Department of Immigration and Citizenship (Department) for a protection visa, claiming to fear serious harm from the Awami League (AL) and the authorities if he were to return to Bangladesh because of his involvement with and support of the Bangladesh Nationalist Party (BNP). In summary, he claimed that:

    His involvement with the BNP included marching in rallies and attending party meetings.

    He was appointed as the Secretary of the Youth Wing of the party about four years after having become a member of the BNP, and this involved campaigning to recruit new members.

    He was followed, harassed and attacked by members of the opposing political party, the AL and a faction of the BNP that had joined the AL.

3    The appellant participated in an interview with the Minister’s delegate on 25 September 2014. On 23 October 2014 the appellant’s representative presented submissions to the delegate addressing the appellant’s claimed inability to relocate to Bangladesh.

4    On 24 October 2014 the delegate decided that the appellant was not a person to whom Australia owed protection obligations under the Migration Act and the Migration Regulations 1994 (Cth), and refused to grant a protection visa.

Tribunal hearing

5    On 5 November 2014, the appellant lodged an application at the Tribunal for review of the delegate’s decision. On 11 February 2016, the Tribunal wrote to the appellant’s representative and invited the appellant to attend a hearing. The appellant’s representative provided written submissions by way of email to the Tribunal on 13 April 2016. On 19 April 2016 the appellant, with the assistance of a Bengali interpreter, and his representative attended a hearing before the Tribunal.

6    The Tribunal noted at [20] of its decision dated 30 June 2018 that during the hearing, when discussing the appellant’s background, family, employment, involvement with the BNP, reasons for leaving Bangladesh and reasons for fearing his return to Bangladesh, the appellant gave “vague, evasive, implausible, contradictory and unconvincing” evidence with “a number of inconsistencies”. Further, the Tribunal observed that “his conduct was not consistent with his claims” and expressed concern “in relation to his credibility and the veracity of his claims.”

7    At [39]-[40] the Tribunal referred to the appellant’s inconsistent evidence when recounting its discussion with the appellant regarding his association with the BNP. So, for example, at [7] of the statement supporting his protection visa application, the appellant claimed to have been a member of the BNP since 1996; however, he gave evidence to the Tribunal that he had never been a member. As to this inconsistency, the appellant expressed that “he did not understand and made a mistake.” The appellant also claimed that the BNP asked him to give a speech; but, he stated to the Tribunal that “when he was asked what he did as a supporter of the BNP, he never mentioned giving speeches” and that “he did not speak in public.” As to this particular inconsistency, the Tribunal found it “implausible that someone who was not a member of the BNP would have been asked to give speeches on behalf of the BNP”.

8    At [41] the Tribunal considered the Department’s decision record of 24 October 2014 and found that it:

indicates that during his interview with the Department on 25 September 2014 he was unable to answer questions about the ideology or the founding principles of the BNP. It indicates that when asked the four founding principles of the BNP, he was unable to answer the question. It indicates that he stated that “digging canals” was one of them and he could not recall the other three.

The Tribunal noted that, during the hearing, that the appellant was “asked about the policies and goals of the BNP” and he “referred to four goals … but was unable to correctly identify all four principles … and a nineteen point plan.” The Tribunal was of the opinion that the appellant’s answers had improved from the responses he gave at the interview with the Department in 2014 but it would have instead expected him “to have a better memory of the policies of the BNP … when it was closer in time to his direct involvement with the BNP than [at the hearing] in 2016.” The Tribunal concluded that the appellant had learned about the BNP in preparation for its hearing.

9    At [42] the Tribunal noted that the appellant was unable to describe the BNP’s flag. The Tribunal opined that, had the appellant been involved with the BNP since 1996 as claimed, he ought to have known that there is no tiger or map of Bangladesh on the BNP flag as the he had claimed.

10    At [43] the Tribunal raised concerns in relation to the appellant’s claim that he had been “appointed as the Secretary of the Youth Wing of the BNP” in 2000 when he had previously stated that he was not a member of the BNP. The Tribunal considered it implausible that he could have been appointed to the office of Secretary without being a member of the organisation.

11    Similarly, at [44] the Tribunal observed that the appellant gave evidence that he voted for the BNP once in a by-election, but later stated he had voted twice in total. The Tribunal found this troubling as it would have expected a person with the appellant’s alleged involvement with a political party for some twenty years to vote for them at every election.

12    At [45] the Tribunal noted that in his protection visa application, the appellant claimed that on 11 January 2001 he was attacked at a BNP meeting by members of the AL and a rogue faction of the BNP that had joined them. However, at the hearing before the Tribunal, the appellant stated the assault occurred on 10 November 2001 – a discrepancy of 11 months. He had also provided a witness statement that attested the incident instead took place at a club a month earlier on 11 October 2001.

13    At [52] the Tribunal noted that the applicant claimed that he was not able to live in his house for three years after the AL came into power at the end of 2008, but gave inconsistent evidence to the Tribunal that he lived in his house for part of the time and with various relatives the rest of the time.

14    At [55] the Tribunal found the appellant’s claim that he was hit by an armed group of AL supporters at a rally in 2009 was implausible because he made no mention of this in his protection visa application nor at his interview with the Department.

15    At [56]-[57] the Tribunal observed that it found the appellant’s evidence about his employment to be implausible.

16    There are numerous other examples of adverse findings of the Tribunal in respect of the claims of the appellant. Ultimately, the Tribunal found at [67], having considered the appellant’s claims, the evidence presented and the submissions made, that the applicant was not a witness of truth and that he had fabricated his material claims for the purpose of obtaining a protection visa. In particular, the Tribunal found as follows:

68.    The Tribunal accepts, that the applicant was born on 10 April 1983 at Groshber village. The Tribunal Accepts that he subsequently moved to Takshal village in Gazipur and lived there from 31 December 1990 until 17 November 2012.

69.     The Tribunal accepts that the applicant is of Bengali ethnicity and is a Muslim, The Tribunal accepts that he attended school between 1989 and 1999. The Tribunal accepts that he was employed as a waiter at a cafe from 2003 to 2010.

70.     The Tribunal accepts that the applicant has never married. The Tribunal accepts that his parents, brother and sister live in Takshal village in Bangladesh. The Tribunal accepts that he left Bangladesh on 17 November 2012 and travelled to Australia via Indonesia.

71.     The Tribunal does not accept that the applicant was or is a supporter or member of the BNP or its Youth Wing. The Tribunal does not accept that he was appointed the Secretary of no: 1 ward, Gazipur Municipality, Bangladesh National Youth Party or the Secretary of ward Jubodal (Gazipur City Corporation). The Tribunal rejects the entirety of the applicant’s claims that flow from these claims.

72.    The Tribunal does not accept that members of the applicant’s family have been targeted for harm because of their Association with him. The Tribunal does not accept that the applicant or any member of his family was or is of adverse interest to the AL, its leaders, members or supporters.

73.    The Tribunal does not accept that the applicant or any member of his family was or is of adverse interest to the Bangladeshi authorities. The Tribunal does not accept that any adverse report, false charge or case have been lodged against the applicant in Bangladesh.

74.     The Tribunal accepts that the applicant does not wish to return to Bangladesh and would prefer to live in Australia.

75.     The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

17    Accordingly, the Tribunal found that there was no real chance that the applicant would suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returned to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal found that the applicant did not have a well founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal found that he did not satisfy the criterion in s 36(2)(a) of the Migration Act.

18    The Tribunal then went on to examine the applicant’s claims under complementary protection, and found that the applicant did not satisfy the criterion in s 36(2)(aa) of the Migration Act.

Application for review to the Federal Circuit Court

19    The appellant filed an application at the Federal Circuit Court on 22 July 2016 to challenge the decision of the Tribunal. The appellant relied on two grounds of review:

1.    The decision of the Tribunal:

a.    is affected by an error of law; and

b.    denied the [appellant] procedural fairness.

2.    I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

20    On 18 January 2017, Registrar Allaway made orders in the primary proceeding requiring the appellant to file, at least 28 days before the final hearing, any amended application for review with proper particulars of the grounds of the application, any affidavits on which he sought to rely, any supplementary court book and his written submissions.

21    The appellant appeared in person at the hearing on 16 May 2018. At that point he had not complied with the Registrar’s case management orders.

22    In its written submissions, the Minister argued that the appellant’s grounds of review lacked “the necessary particulars to make them meaningful” and that the application “cannot succeed for that reason alone.”

23    The decision of the primary Judge was brief, and delivered ex tempore. Her Honour found as follows:

1.    This application comes before the Court by way of an application which was filed on 22 July 2016 with an accompanying affidavit seeking to challenge the decision of the Administrative Appeals Tribunal that was made on 30 June 2016 refusing a protection visa to the applicant. The grounds of the application are set out extremely sparsely. There are only two grounds specified in the application.

2.    The first ground is that:

The decision of the Tribunal:

(a)    is affected by error of law; and

(b)    denied the applicant procedural fairness.

The second ground is:

I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

The grounds raised by the applicant lack the necessary particulars to make them meaningful, and I accept the first respondent’s submission that they cannot succeed for that reason alone.

3.    I accept the first respondent’s submission that in relation to ground 1(a), being that the Tribunal decision was affected by error of law, that the correct framework of analysis in assessing whether the applicant met the refugee and complementary protection criteria and making findings were open to it on the evidence before it.

4.    In respect to ground 1(b), that the Tribunal denied the applicant procedural fairness, I have read the first respondent’s written submissions and further submissions this morning. It is submitted that the Tribunal complied with its procedural fairness obligations set out in pt.7, div.4 of the Migration Act 1958 (Cth) (“the Act”) and was in compliance with s.425 of the Act, in that it invited the applicant to attend a hearing on 19 April 2016 to give evidence and present arguments. He attended with his representative and an interpreter. The applicant was on notice from the delegate’s decision that the credibility of his claims and evidence was determinative on the review.

5.    I accept the first respondent’s submission that no breach of s.425 has occurred nor did any obligation arise under s.424A of the Act. The information the Tribunal relied on in reaching its decision was information the applicant provided in writing to the department and to the Tribunal, the applicant’s oral evidence to the Tribunal and country information. All of which fell within exceptions to information in ss. 424A(3)(ba), 424A(3)(b), 424A(3)(a) respectively. I accept that no breach of s.424A has occurred and ground 1(b) should be dismissed.

6.    Ground 2 in the application is that “I have made an application for assistance through Victorian Legal Aid and am waiting for a decision”. It is submitted on behalf of the first respondent that this statement regarding the applicant’s application is not a proper ground for review. I accept that submission too; accordingly, I propose to make an order to dismiss the application and will make an order for costs.

Appeal to the Federal Court

24    In his notice of appeal to the Federal Court filed 1 June 2018, the appellant relies solely on the following ground of appeal:

With due respect, I want to state that, I am not satisfied with the Judgement. During the RRT hearing I provided documents to the Immigration officer and he said these documents are fake. However, I strongly disagree with him. In these documents it is mentioned that how I got injured due to political revenge as an opposition political member. I also showed my injury certificates. During FCC hearing I tried a lot to make honourable judge realize that these documents are valid but he did not consider my appeal. This may be possible because I have very little knowledge of legal matters. I couldn’t appoint any lawyer as I’ve no work permission. So I couldn’t prepare myself constructively in terms of court which resulted lack of preparation.

(Errors in original.)

25    Further, the appellant states that he seeks the following orders from this Court:

1.    The Documents I provided are genuine ones. If the judge needs I can provide supporting documents to prove those ‘provided documents’. So my request is kindly review my documents.

2.    As I cannot afford any lawyer to represent my case in front of court so my heartmost request is that please consider myself to represent my matter with more details.

3.    A Protection Visa Review.

(Errors in original.)

26    At the hearing of the appeal, I noted that the appellant had not complied with the orders of Registrar McCormick in these proceedings dated 24 July 2018, particularly that which required him to file and serve a written outline of submissions no later than 10 business days before the hearing. At the hearing, and in the interest of justice, I invited the appellant to make oral submissions from the bar table with the assistance of the interpreter. In summary, the appellant relevantly submitted that:

    all the documents he had provided were “100% genuine”, and the Tribunal did not go to his country to check the validity of the documents;

    the Tribunal assumed the documents were falsified – accordingly the appellant believed that the delegate and the Tribunal had preconceived views;

    there was another “important document” – untranslated from Bengali – that he did not have at the time of the previous hearings and would like to this Court to consider it;

    during the interview with the Department, he was unable to remember all of the information; and

    he has done nothing wrong in Australia, however issues within his home country and his political party means it would be very difficult for him to return to Bangladesh.

27    In written submissions the Minister contends as follows:

18.    Under the heading “Orders” in the notice of appeal, the appellant reiterates his contention that the documents provided were genuine and that he can provide further supporting evidence in this regard. He otherwise notes that he cannot afford a lawyer and will be self-represented in the appeal.

19.    This ground (including its various components) was not raised in the appellant’s application to show cause in the Federal Circuit Court, however the appellant did make oral submissions concerning the Tribunal’s findings in relation to the authenticity of his supporting evidence before the primary judge.

20.    Although an appeal to the Federal Court is an appeal by way of rehearing, it remains necessary to demonstrate an error in the judgment appealed from. As the Full Court has explained, “an appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge.”

21.    At their highest, the ground of review and orders seek impermissible merits review of the Tribunal’s decision and attempt to introduce supporting evidence which was not before the Tribunal or the Federal Circuit Court, and has not yet been produced in this Court. The appellant’s notice of appeal fails to grapple with the reasons given for the primary judge’s decision and does not identify any error on the part of the primary judge, or an arguable case for the relief sought from this Court.

22.    In so far as the appellant complains of error in the Tribunal’s decision, the Tribunal properly considered the appellant’s supporting evidence, including the medical document (medical document) provided by the appellant and marked “Exhibit R1” at the hearing before the primary judge: AAB 184-185, [61]-[63]. However, the Tribunal found that the medical document was not authentic in light of inconsistencies in its contents and the appellant’s other evidence, and the prevalence of fraudulent documents in Bangladesh: AAB 185, [64]. The Tribunal was not obliged to uncritically accept the applicant’s claims and the weight to be given to those claims and the evidence was a matter for the Tribunal to assess as part of its fact-finding function.

23.    The grounds of appeal reveal no jurisdictional error on the part of the Tribunal or any appellable error on the part of the primary judge.

28    In response to the appellant’s oral submission that the Tribunal ought to have investigated the validity of the documents, Mr Cunynghame for the Minister submitted that the Tribunal was under no obligation to make its own enquiries as supported by the authority of Flick J in SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22.

Conclusion

29    The grounds of appeal and oral submissions of the appellant are essentially attempts to reagitate the issues that were before the primary Judge, akin to seeking further merits review. The appellant does not identify any legal errors in the Tribunal’s decision nor the primary Judge’s reasons.

30    During the hearing the appellant complained that the Tribunal had not investigated the provenance of documents on which he had relied, and further had preconceived views of their authenticity.

31    As the High Court observed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009); 83 ALR 1123:

18.    It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.

19.    The observation in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs that the Tribunal was “bound to make its own inquiries and form its own views upon the claim which the appellant made” was informed by the context, which concerned the requirements, in the circumstances, of procedural fairness. The Court held that procedural fairness had required the Tribunal to tell the applicant the substance of certain allegations made against him by a third party and to ask him to respond to them.

20.    The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.

…

25.    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction…

(Footnotes omitted; emphasis added.)

32    In this case the view of the Tribunal that the appellant’s evidence lacked credibility as a whole was based on multiple, identified examples of inconsistency, vagueness, evasion and implausibility. This is not a case such as that identified by the High Court in SZIAI where the Tribunal has failed to make an obvious inquiry about a critical fact such that its decision could be characterised as unreasonable.

33    In relation to the appellant’s claim that the Tribunal approached evidence before it with preconceived views, it is a well-established principle that existence of a reasonable apprehension of bias is to be tested, not by reference to the apprehension on the part of a litigant, but by reference to a more objective, reasonably-informed bystander: see for example Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [12], Kimber v The Owners Strata Plan No 48216 [2018] FCAFC 181 at [13]. No bias should be inferred solely from factual findings that were open on the material before the Tribunal (as was the case here): see for example Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [188]-[192] and the Full Court of this Court in Fraser v Minister for Immigration and Border Protection [2015] FCAFC 48; (2015) 145 ALD 337 at [30].

34    In relation to the additional evidence sought to be adduced by the appellant in this appeal, I refuse leave for it to be filed. The appellant described the document he sought to tender in general terms, being referable to a “political case” in Bangladesh involving him. However:

    As Counsel for the Minister properly submitted, this new document was not before the Tribunal, and it was not apparent how it could impinge upon a claim of jurisdictional error allegedly tainting the Tribunal’s decision.

    No explanation of substance was provided by the appellant as to why he had been unable to produce the relevant document to the Tribunal, or indeed at any stage prior to the hearing of this appeal. I particularly make this observation in circumstances where the appellant has been in Australia almost 6 years to date.

    The document was apparently in Bengali, untranslated, and is of unexplained provenance.

35    In my view the submissions of the Minister accurately address the appellant’s ground of appeal. No appellable error is apparent on the part of the primary Judge, and no jurisdictional error on the part of the Tribunal.

36    The appropriate orders are to refuse the appellant leave to file additional evidence in this appeal, and to dismiss the appeal with costs.

Associate:

Dated:    16 November 2018