FEDERAL COURT OF AUSTRALIA

CZT17 v Minister for Home Affairs [2018] FCA 1817

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    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.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant, CZT17, appeals from the decision of the Federal Circuit Court of Australia (FCC) wherein his application for the issue of a Constitutional writ directed to the Administrative Appeals Tribunal (the Tribunal) was dismissed on 8 June 2018. The Tribunal had, on 19 June 2017, affirmed a decision of the Minister for Immigration and Border Protection not to grant CZT17 a Protection (Class XA) Visa.

2    In its reasons for decision the Tribunal assessed the substantial evidence before it relating to CZT17’s claim, however, it formed an adverse view of his credibility. Indeed it reached the conclusion that he was not a credible witness such that it was not able to accept key aspects of his claims and it concluded he had fabricated the facts he advanced in order to create a claim to be owed protection.

Background

3    CZT17 is a citizen of Bangladesh and a national of that country. He entered Australia on a Sub-Class FA600 Visitor’s Visa which had been issued to him on 22 April 2014. However, he did not depart Bangladesh until 27 May 2014. He arrived in Australia on 28 May 2014.

4    The visa on which CZT17 entered Australia was valid until 28 June 2014. It was not until 26 June 2014 that CZT17 made an application for a protection visa. On 25 February 2015 the delegate determined that he had failed to meet the criteria for the grant of that visa.

5    The foundation of CZT17’s claimed entitlement to a protection visa was his assertion he fears harm from the Awami League in Bangladesh because of his support for the opposing political party, the Bangladesh Nationalist Party (BNP) and his active role in it. Much of the evidence adduced to the Tribunal was directed towards his claimed participation in the political activities of the BNP. He also alleged that false charges had been made against him in Bangladesh.

6    The delegate did not accept CZT17’s claims of political activity or that false charges were averred against him. The delegate was also not satisfied that the documents which CZT17 produced relating to the alleged charges were genuine. Further, he did not accept CZT17’s explanations for his delay in departing Bangladesh after a visitors’ visa was issued to him.

The Tribunal’s decision

7    A significant part of the Tribunal’s decision was its conclusion that CZT17 lacked credibility. In effect it disbelieved his claims relating to his alleged political activities, the existence of any threats of harm and his claimed fear of harm.

8    There is no need to set out in detail the full extent of the Tribunal’s reasons. For present purposes it is appropriate to note, in summary form, the following matters:

(a)    The Tribunal identified CZT17’s evidence as to his involvement in the BNP in Australia as being inconsistent and confusing. This added to his lack of credibility as a witness. He was not able to give any good reason as to why he did not join BNP Australia for such a long time after he arrived here given his claimed intense political activity in Bangladesh. The explanation he gave was inconsistent on occasion and confusing in that much of what he said did not make sense.

(b)    The Tribunal also disbelieved CZT17’s claims as to why he feared to return to Bangladesh and the reasons why he departed, namely that he faced harm at the hands of the Awami League due to his political involvement and activism with BNP. He had claimed that he had to go into hiding as a result of attention from the Awami League, but his evidence about when and where he went into hiding was inconsistent. The claim that he went into hiding had not been disclosed on occasions when he might reasonably have been expected to mention it. His explanation for his omission to mention this important factor was not convincing.

(c)    Similarly, CZT17 did not have any great knowledge of current BNP activity in Bangladesh. Given that he had claimed that he was active in the party at significant levels, the Tribunal was concerned with his inability to give details of current BNP activity in Bangladesh. Although he claimed that he did not know the phone numbers of BNP activists there, the Tribunal found that explanation to be unconvincing. It did not accept that there was no one whom he might contact who could update him on politics in Bangladesh. The Tribunal also found that he was somewhat vague about when he ceased being active in politics in Bangladesh.

(d)    The Tribunal was concerned that CZT17 delayed his departure from Bangladesh for over a month after he had been granted the tourist visa to Australia. He claimed that he had to wait to raise enough money to bribe an official at the airport. That too was an unconvincing explanation considering his personal circumstances.

(e)    CZT17 claimed that he had been attacked in Bangladesh because of his political views, however, the Tribunal disbelieved him about this and considered it to be inconsistent with him continuing to work after the occurrence of the alleged attack being at a time when he claimed that he was in hiding.

(f)    Although CZT17 had a medical report which referred to him having been assaulted, it was not consistent with the type of attack which he alleged had been inflicted upon him.

(g)    In summary, the Tribunal found in relation to CZT17 that:

56.    For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and why he fears return.

(h)    The Tribunal referred to alleged charges which CZT17 claimed have been made against him in Bangladesh shortly before he left and the documents which purported to show that such charges had been preferred against him. It considered that his lack of credibility overwhelmed the import of those documents and, in doing so, it noted the prevalence of document fraud in Bangladesh. Similarly, it disregarded a document purporting to be a letter from the BNP President.

(i)    Ultimately the Tribunal concluded:

63.    Accordingly, for all of the above reasons, in light of its findings that he was not a reliable witness, the Tribunal has no confidence in accepting that key aspects of his claims were based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection. On the evidence before it, the Tribunal does not accept the applicant and his family were ever threatened directly or indirectly or faced any of the difficulties he claims at the hands of Awami League and/or the police or RAB or in cross fire; and he was a supporter, member, Joint Secretary or ever involved or held any position at any level with the JCD and/or BNP and/or Jubo Dal or was ever perceived as a supporter of the JCD and/or the BNP and/or Jubo Dal and/or perceived as being opposed to the Awami League and the government. It follows it does not accept he was ever involved as Joint Secretary in the Daudkandi Municipal Committee or on the Committee or involved in leadership positions while at college or ever, as claimed.

(j)    Consequently, the Tribunal was able to conclude that no ground arose under the Refugee Convention warranting the granting of a protection visa. Similarly, and for the same reasons, no ground arose under the Complementary Protection provisions in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

Hearing before the Federal Circuit Court of Australia

9    The application for review of the decision of the Tribunal was heard before Judge Street on 8 June 2018 who detected six grounds of review in the amended application and dealt with them per seriatim. The reasons for rejecting each of the grounds are not lengthy although it must be acknowledged that a number of them were wholly unmeritorious.

10    It suffices to say that each ground of review was dismissed by the primary judge and, accordingly, the application itself was dismissed.

Appeal to this Court

11    When the matter was called on for hearing there was no appearance by the appellant or by anyone on his behalf. That was not surprising. On or about 8 November 2018 the appellant sent to the Federal Court a document purporting to be a medical certificate from a Dr Masum Ahmed. It said:

I have examined [CZT17] today and certify that the patient is unfit to engage in his regular study/employment/jury duties between Thursday, 8 November 2018 to Friday 16 November 2018 inclusive.

12    As a result of the receipt of the medical certificate the hearing of this appeal was moved from its original hearing date of 15 November 2018 to 21 November 2018.

13    On or about 16 November 2018, the Federal Court received a further document purporting to be a medical certificate from Dr Masum Ahmed. It said:

This is to certify that [CZT17] is a regular patient of me. He have had recent presentations to me with moderate to severe testicular pain & lower abdominal pain. Subsequent investigations show that he is suffering from bilateral testicular varicoceles & inguinal hernia. He is referred to a specialist & he is booked for a surgical cure of them. Currently his pain is very bad & he is advised to take rest & pain killer. Therefore, I hope you will consider him to defer his court issues after he become well (after the surgery).

14    The appellant was informed that the material provided was insufficient to warrant a further adjournment of the hearing of the appeal, and that if he maintained the need for it he should appear at the hearing with appropriate evidence and explain why the adjournment was required.

15    Within 15 minutes prior to the hearing of the appeal the appellant sent a further document to the Court. It was a form entitled “Recommendation for Admission Form” which appeared to recommend the admission of the appellant to hospital within 90 days for laparoscopic repaid of a hernia. There is nothing in the document which suggests that the appellant was unable to attend Court or participate in the hearing of the appeal. Indeed, he indicated in the form that his mobility was not impaired.

16    The medical circumstances of the appellant did not warrant the granting of a further deferral of the hearing of the appeal as they did not indicate that he was unable to conduct the appeal or was impaired in any way which might hinder him attending Court and advancing his arguments.

The grounds of appeal

17    The grounds of appeal, although referred to as grounds for leave to appeal, are slightly opaque. Nevertheless, their essence appears to be as follows:

(a)    The FCC failed to hold that the Tribunal committed an error when it failed to give reasonable reasons for rejecting the claim for Complementary Protection under s 36(2)(aa) of the Act. It is said the Tribunal made a jurisdictional error when it used the same factual findings for determining serious harm and significant harm when assessing the claim for Complementary Protection. It is further said the Tribunal failed to exercise caution when importing fact finding into consideration of the Complementary Protection claims.

(b)    The FCC failed to find that the Tribunal made a jurisdictional error when it erred in reaching its conclusions about CZT17’s political involvement. It is said that the appellant did not mislead the Tribunal as the Tribunal found and that his inclusion of additional reasons for protection should not have discredited him. He said that his evidence was consistent with his claims in the written application form and that he was merely expanding the arguments and presenting his evidence correctly. He claimed the Bengali language interpreter did not interpret correctly. He further claimed that he did not get a transcript copy of the oral evidence and because of that he lost the opportunity to be properly represented. This appears to be in the nature of a claim of a denial of procedural fairness.

(c)    The FCC failed to identify that the Tribunal made a jurisdictional error by disregarding CZT17’s oral and written evidence without giving a solid reason for doing so. It is said the appellant did not fabricate any evidence and the Tribunal did not give full reasons for its credibility findings. It is also said the credibility findings were assessed on a very limited basis.

Ground one

18    The appellant’s first complaint is that the primary judge gave inadequate reasons for the conclusion that the Tribunal made no error in applying the findings which it made in relation to the Refugee Convention ground to the Complementary Protection ground. The trial judge’s reasons in this respect were as follows:

Ground 5

35.    In relation to ground 5, the Tribunal correctly identified the relevant law. It was open to the Tribunal to take into account its comprehensive adverse credibility findings under the Refugee Convention in determining whether or not the applicant met the criteria for complimentary protection. No jurisdictional error as alleged in ground 5 is made out.

19    There is no doubt that the fundamental requirements of natural justice necessitates a litigant being informed of the reasons why their submissions are rejected or not accepted. In this case the reasons provided for the rejection of ground five are extremely brief. Whilst they indicate a correct conclusion as to the entitlement of a Tribunal to apply its findings of fact to both Refugee Convention grounds and Complementary Protection grounds, it does not explain why that was appropriate in the present case.

20    However, that is not to say that any injustice flows from the inadequacy of the reasons which would warrant the allowing of the appeal. It is well accepted that an error arising from inadequate reasons does not necessitate the allowing of an appeal merely on that basis. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 444 it was said

Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported).

21    See also Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [29]; Van der Velde v Halloran [2011] WASCA 252 at [102].

22    To a substantial degree the appellant’s argument in this respect is misguided. The Tribunal did not make findings in relation to the Convention grounds and then merely apply them to the Complementary Protection grounds. What it actually did was make findings about the facts and circumstance alleged by the appellant which underpinned his claims under the Convention and s 36(2)(aa) and, having done that, applied those findings to the claims advanced by the appellant. There was no error in it doing so.

23    The real difficulty for CZT17 is that the findings made by the Tribunal were to the effect he “was not now or never was a supporter, member, leader or position holder, associated with, involved or perceived to be associated with the JCD or BNP or Jubo Dal or in opposition to the Awami League or faced any of the difficulties he claims for the reasons he claims in Bangladesh or has been involved in the BNP in Australia, either as a member or follower or in any capacity”. That conclusion was pivotal in respect of both the Convention claims and the Complementary Protection claims which he advanced as the reason why he ought to be granted a protection visa. The Convention claims were based on his engagement in certain political activities but, as the Tribunal disbelieved his evidence and concluded that he was not so engaged, his claim of persecution for them could not be sustained. The only foundation for a visa under the Complementary Protection grounds was the alleged risk of harm arising from his erstwhile political involvement were he to be returned to Bangladesh. The consequence of the factual findings made by the Tribunal obliterated the substratum of that claim as well.

24    Therefore, even if the primary judge’s brief reasons were inadequate, no injustice arose on which an appealable error might be detected because the conclusion expressed by the primary judge was obviously correct.

25    Whilst the entitlement of the appellant to receive adequate reasons for the rejection of his claims is paramount, it must also be kept steadily in mind that the work pressures on the FCC are substantial and that is particularly so in relation to migration matters. Further, many of the arguments advanced by litigants before that Court are, perhaps through a lack of understanding, misguided and ill directed. That is an adequate descriptor of the argument advanced to the primary judge in respect of this ground. Whilst a first instance judge must provide adequate reasons for any conclusion reached, it is necessary to keep in mind the context in which the judicial officer is required to hear and determine the matter at hand.

26    No appealable error is demonstrated in respect of ground one.

Ground two

27    The second ground of appeal seeks to cavil with the findings of the Tribunal concerning CZT17’s claimed political activities in Bangladesh and Australia. Whilst various arguments are advanced, they amount to no more than an attempt to engage in merits review of this issue. Neither this Court nor the FCC have jurisdiction to engage in a merits review of the decision of the Tribunal. In this respect the Tribunal is to determine the facts of the matter before it. Whilst a jurisdictional error in the Tribunal’s process will arise where some illogicality or irrationality arises in the fact finding process, no error arises merely because a judge hearing an application for review might have assessed the facts differently. In order for a finding of fact to be illogical or irrational it must be shown that there is no evident or intelligible justification for the conclusion reached: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] per Kiefel CJ.

28    Here the appellant does not identify any basis on which the findings of fact as to his erstwhile political activity were in error. Although he said that the Tribunal erred in concluding he was not a reliable witness because of the manner in which his narration of events and circumstances changed, there is nothing which supports that submission. The Tribunal was entitled to assess the credibility of the claims advanced by him and assess his credibility based upon the manner in which he provided information to it. The Tribunal was also entitled to conclude that the late provision of important information raised questions as to its veracity. This it did in the present case and there is an inherent logical basis for doing so. If the information which was self-evidently relevant and important to the appellant’s claims was true, it would have been provided to the Departmental officers or the Tribunal at the earliest opportunity.

29    In CZT17’s written submissions and grounds of appeal, he claims that he suffered some detriment because of inadequate translation services at the Tribunal hearing. This allegation is merely part of the narration under the heading “Grounds of application” in the Notice of Appeal before this Court. It suffices to say that there is no evidence whatsoever of any inadequacy in the translation of the proceedings before the Tribunal or the Federal Court. There has been no attempt to have the recording of the hearing transcribed by an interpreter and to identify any erroneous translation relevant to any of the issues on which the Tribunal determined the application. This ground is pure assertion, unsupported by any skerrick of evidence and cannot be sustained. There is nothing to suggest any denial of procedural fairness in relation to the manner in which the appellant’s evidence or submissions were translated for the Tribunal.

30    It should be observed that this ground was only raised before this Court and not before the primary judge even though the underlying facts would have been known to the appellant at the time of the hearing before the FCC.

31    It follows that this ground cannot succeed.

Ground 3

32    By this ground of appeal CZT17 complains that the Tribunal rejected his evidence without proper grounds for doing so or without giving adequate reasons. The first part of this submission is quite obviously an attempt to cavil with the findings of fact made by the Tribunal. Although he asserts that the Tribunal did not provide adequate reasons for rejecting his evidence or determining he fabricated facts in support of his application, he identifies no occasion where that is said to have occurred.

33    The Tribunal’s reasons for disbelieving CTZ17 are set out in detail in its reasons from paragraph 25 to 68 and under the heading “Assessment of credibility of claims”. There is no need to set out the detail of those extensive findings. However, it is relevant to note that CZT17’s explanations as to his involvement with BNP in Australia and Bangladesh were identified as being inconsistent and confusing. That conclusion was justified by reason of a number of substantial changes to his evidence. His explanations for those changes were also regarded as not convincing. Similarly the Tribunal disbelieved his claims as to having gone into hiding whilst living in Bangladesh after being attacked in February 2014. This had not been raised in his detailed statement which he had provided to the Tribunal prior to the hearing and that fact also diminished his credibility. Similar questions as to his credibility arose from his lack of knowledge of BNP politics both in Australia and in Bangladesh, his delay in departing from Bangladesh after obtaining a visa, his having continued to work in Bangladesh until 15 May 2014 despite claims that he was then in hiding and doubt as to the circumstances of the alleged attack and the evidence surrounding them.

34    CZT17 has not shown any foundation to support a claim of illogicality or irrationality in the fact finding process engaged in by the Tribunal. As identified, the Tribunal assessed the evidence which the appellant had provided, it identified the inconsistencies and weaknesses in it and concluded that it demonstrated CZT17 had a lack of credibility.

35    It follows that there is nothing to support this ground of appeal either.

Conclusion

36    It necessarily follows from the above that none of the grounds in the Notice of Appeal can be sustained. The appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    21 November 2018