FEDERAL COURT OF AUSTRALIA

BAU16 v Minister for Home Affairs [2018] FCA 1905

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs to be paid by the appellant to the first respondent as agreed or as assessed.

2.    The name of the first respondent be changed to “Minister for Home Affairs”.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The appellant is a Bangladeshi man who left Bangladesh in 2012 and travelled to Malaysia. He arrived in Australia on 4 December 2012 without any original identification documents. On 12 April 2013, he applied for a Protection visa claiming fear of harm if returned to Bangladesh because of his support for the Bangladesh Nationalist Party (the “BNP”). On 22 October 2014, a delegate of the first respondent refused the appellant’s application. He then sought review in the Administrative Appeals Tribunal (the “Tribunal”).

2    The delegate’s decision was affirmed by the Tribunal on 19 April 2016. The appellant sought judicial review of that decision in the Federal Circuit Court of Australia which, after a hearing held on 13 April 2018, dismissed the proceeding on the same day. The appellant now appeals that decision to this Court.

Background

3    The appellant’s claims were accurately summarised by the delegate and are set out at [21] of the Tribunal’s reasons as follows:

•    The applicant was an active supporter of the BNP and became a member in 2007.

•    In mid 2010 he was present at a BNP rally that was attacked by supporters of the Awami league. Many BNP supporters were injured and he assisted some of the wounded onto auto-rickshaws and accompanied them to hospital.

•    In the days following the attack on the rally the police, at the behest of the ruling of Awami league, arrested a number of BNP supporters in the district. The police continued intermittent arrests, with decreasing frequency, over the next two years. The police came to the applicant’s home on a number of occasions but they did not find him at home.

•    Awami League supporters also made threats to the applicant.

•    The applicant left his home for safety on seven or eight occasions and stayed with his uncle. His longest period away from his home was three months.

•    He fears he will be arbitrarily arrested, beaten and possibly killed by the police or beaten and killed by supporters of the Awami League if he returns to Bangladesh.

•    He cannot relocate within Bangladesh as conditions throughout the country are poor and he has no social connections to help him resettle.

In essence, the delegate found that the appellant was not a member of the BNP and that he had embellished his activities in support of that party.

4    The delegate did not accept that the appellant had a profile that would attract the adverse interest of the Awami League supporters (the political rival of the BNP) in the reasonably foreseeable future. Whilst the delegate accepted that the appellant had attended a BNP rally and had assisted some people injured in a clash at it, thereafter he had suffered no ongoing harassment, and was not the subject of adverse interest from the Awami League or the police.

The Proceedings before the Tribunal

5    When the matter came to be heard before the Tribunal, the appellant’s evidence differed in part from that given before the delegate.

6    Before considering that evidence, I should record that the Tribunal summarised the applicable principles of law for the purposes of s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the “Migration Act”) at [5] to [18] of its reasons for decision. The appellant has not submitted before me, and did not submit before the primary judge, that this summary was in any way inaccurate. Rather, the appellant’s essential complaint was that he should have been believed by the Tribunal when he was not.

7    The Tribunal member was, in my opinion, astutely aware of her fact-finding responsibilities and of the need for her to take considerable care before making adverse credibility findings. The member said at [37]:

I have carefully considered the applicant’s claims. I have reflected upon his representative’s submissions and I acknowledge that caution and care that needs to be exercised in reaching adverse credibility findings and that it is important to view inconsistencies with an eye that is sympathetic to the stress and difficulties that asylum seekers recounting traumatic events on multiple occasions. I have sought to adopt a liberal attitude in assessing the applicant’s evidence. However, ultimately, I have reached the conclusion that the central elements of his claims cannot be accepted as credible. This is because there are major inconsistencies in the applicant’s evidence about material issues which are central to his claims for protection and he has been unable to credibly explain these significant inconsistencies in his evidence. Further, the applicant has been unable to plausibly explain why the police or [Awami League (“AL”)] supporters would be looking for him in the years before or after he left Bangladesh. Also of concern: his evidence about his claimed membership of the BNP shifted over time and, in certain respects, was unsupported by the available country information. Accordingly, for all the reasons that follow, I have reached the conclusion that the applicant has embellished his evidence about his involvement with the BNP in the hope of obtaining a favourable immigration outcome.

8    The principal factual difficulty the Tribunal had with the appellant’s evidence concerned a fight between BNP supporters and Awami League supporters which he claimed to have witnessed. The Tribunal said that the problem with the appellant’s evidence was that his account about when, and in what context, the fight occurred had changed dramatically over time. At [39] of the reasons of the Tribunal, the member said that she found the appellant’s evidence about what BNP rallies he had attended to be “contradictory, confused and unconvincing”.

9    Pursuant to s 424AA of the Migration Act, the Tribunal member put to the appellant that in the interview with the delegate on 2 October 2014, he stated that he had been at a BNP rally with around 3000 or 4000 people in around May or June 2010 where BNP supporters had gathered to protest against the new minister and to let the people know how badly the Awami League had been responding to daily needs. The Tribunal member said that this was important because he, the appellant, had told the Tribunal that this rally had occurred in 2007 before the 2008 elections, and this was inconsistent with his evidence to the delegate. The appellant explained that this might have been a mistake, but the Tribunal member did not accept that the appellant had adequately explained the significant inconsistency in his evidence. The Tribunal member found that such inconsistencies in the appellant’s evidence were not minor matters that might be explained by a combination of confusion and misunderstandings, or the difficulty of having to recount his experiences in Bangladesh on multiple occasions. The Tribunal observed that no medical evidence had been presented to it showing that the appellant’s memory function had been impaired in some way.

10    The Tribunal also did not accept the appellant’s claim that the police had visited his family home looking for him. It found that the appellant’s evidence about this issue had changed over time. The Tribunal member put to the appellant that it was unclear why the police or the Awami League would want to pursue him simply because he had been involved in a rally attended by thousands of people in which he did not play any special role. The Tribunal found that the appellant’s explanation was not plausible and that it was not satisfied that he would have been of adverse interest to the Awami League or the police at the time he left Bangladesh in 2012. It found the appellant’s evidence on this issue to be “very vague and not persuasive”.

11    The Tribunal also had concerns about the appellant’s claim that he was a member of the BNP. It said that the appellant’s evidence about this issue had changed over the course of the protection visa application process. For example, whilst the appellant’s written claims state he was not a member of the BNP, before the Tribunal he gave evidence that he became such a member in 2007 because the people in his local area and his family members were all supporters of the BNP and he thought he would follow them.

12    The Tribunal observed that in certain respects the appellant’s evidence about how he became a member of the BNP was inconsistent with the available country information, and his evidence about when he became involved in the BNP was found to be vague and confused. It considered the documents provided to the Tribunal by the appellant said to prove his membership. It found that the documents did not overcome the Tribunal’s concerns about his claim to be a BNP member because country information available to the Tribunal indicated that fraudulent documentation of this kind was readily available in Bangladesh. For this reason, the Tribunal member placed little weight on the documents provided and said that it did not overcome the member’s concerns about the credibility and plausibility of the appellant’s oral and written testimony.

13    The Tribunal member acknowledged that the appellant was able to demonstrate some knowledge of the BNP in his local area, but did not otherwise find his evidence about his involvement with the BNP to be persuasive. It characterised his evidence about his involvement with the BNP as being “vague and limited to generalities”.

14    The Tribunal also considered the appellant’s claim that since leaving Bangladesh, people had been to his house and asked questions, but again considered that the appellant had not plausibly explained why the police or the Awami League supporters would have had any interest in knowing where he was. In its assessment, the fact that almost all of the appellant’s immediate family remained living in his home village supported the conclusion that there is no real chance that the appellant will suffer any harm if he returns to Bangladesh because he is from a BNP family.

15    The Tribunal concluded on the evidence before it that the appellant was never actively involved in the BNP, and that his claims that he left Bangladesh because he feared Awami League supporters and the police had been fabricated. The Tribunal said it was not satisfied that if the appellant were to return to Bangladesh now he would be motivated to actively involve himself in supporting the BNP.

16    The Tribunal’s conclusions concerning this aspect of the appellant’s claim may be found at [59], [60] and [65] as follows:

59.    On the evidence before me and, having regard to my significant concerns about the credibility of the applicant’s claims, I do not accept that he was ever of any adverse interest to members of the AL or to the authorities or to any other groups or person in Bangladesh because of his political involvement in the BNP. I do not accept that he ever attracted the adverse attention of the police or AL supporters because of his attendance at a BNP rally or because he was actively involved in supporting the BNP or because he witnessed a fight between the AL and the BNP. While I consider it is plausible that political rallies that occurred in his area resulted in violence between the AL and BNP, because I do not accept that the applicant is a credible witness I do not accept that he ever attended such rallies.

60.    On the evidence before me, I am not satisfied that the applicant was ever actively involved in supporting the BNP by attending BNP meetings or rallies or that he officially became a member of the BNP in 2007 or that he was involved in door knocking or other activities promoting the BNP. While I am prepared to accept that it is possible that the applicant and his family members voted for the BNP in the past, on the evidence before me, I am not satisfied that he was ever a member of the BNP or that he ever regularly attended meetings or rallies or supported the BNP in other ways such as door knocking and putting up BNP posters. While I have considered the membership certificate, given the country information indicates that fraudulent documentation is readily available, I have given it little weight and it does not overcome my concerns about the credibility of the applicant’s claims.

…

65.    On the evidence before me and having regard to my findings of fact, I do not accept that there is real chance that the applicant will face serious harm for the reasons he has claimed. I do not accept that he has a well-founded fear of being persecuted for his political opinion (actual or imputed) or any of the other Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. Further, having regard to my findings of fact, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act for any of the reasons claimed.

17    The Tribunal also considered the risk of harm to the appellant because he claimed he had left Bangladesh illegally. The appellant told the Tribunal that, before leaving Bangladesh, he had been unable to get a passport because he had not had time to do so and that he had been in hiding. However, the Tribunal did not accept that the appellant was ever in hiding in Bangladesh, and it found the appellant’s explanation about why he did not obtain a passport as lacking credibility.

18    However, the Tribunal was prepared to accept that the appellant may have left Bangladesh illegally by boat. The Tribunal considered country information from the Department of Foreign Affairs and Trade which stated that thousands of Bangladeshis enter and leave the country every day, and that the return of failed asylum seekers is unlikely to be reported by airport authorities to the Department of Immigration and Passports, the Ministry of Home Affairs, or other agencies beyond the normal processes whereby returning nationals have their entry and exit from Bangladesh recorded. The Tribunal’s conclusion on this issue is set out at [71] of its reasons as follows:

On the evidence before me, I am not satisfied that there is real chance that the laws that prohibit illegal departure would be enforced against the applicant on his return to Bangladesh. Because I do not accept that there is a real chance that the law will be enforced against him, it follows that I do not accept that there is a real chance that he will be imprisoned or otherwise subject to treatment that amounts to serious harm or significant harm for this reason if he returns to Bangladesh or that the laws against illegal departure would be applied more harshly against the applicant because of his claimed BNP connections. Having regard to the available country information and what I have accepted of the applicant’s claims and circumstances, I do not accept that there is a real chance that he will be imputed with a political opinion against the AL and/or the Bangladeshi authorities and/or in support of the BNP for any of these reasons or for a combination of these reasons.

19    The difficulties with the appellant’s evidence, as found by the Tribunal, were summarised by the primary judge at [20] of his Honour’s reasons for decision as follows:

(a)    inconsistent evidence regarding the fight the appellant claimed to have witnessed;

(b)    contradictory, confused and unconvincing evidence about attending BNP rallies;

(c)    inconsistent evidence regarding adverse attention of the Awami League supporters;

(d)    inconsistent evidence regarding the police visiting the Applicant’s family home and looking for him;

(e)    the implausibility of the Applicant’s claim that he was of adverse interest to the police and Awami League because he was present at a BNP rally five years earlier;

(f)    what the Tribunal considered was vague and unpersuasive evidence about why the police and supporters went to the Applicant’s home;

(g)    the Applicant’s changing evidence about whether he was a member of the BNP;

(h)    the inconsistency of his claim to be a member of the BNP with country information; and

(i)    the Applicant’s vague and limited evidence in relation to his involvement with the BNP.

(Footnotes omitted.)

20    For all of the foregoing reasons the Tribunal was not satisfied that the appellant had satisfied the requirements of either s 36(2)(a) or s 36(2)(aa) of the Migration Act.

The Proceedings before the Federal Circuit Court

21    Before his Honour Judge McNab, the appellant’s grounds of review were as follows.

(1)    The decision of the Tribunal:

(a)    is affected by an error of law; and

(b)    denied the applicant procedural fairness.

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

22    The appellant was not legally represented below. The primary judge found that the credibility findings the Tribunal had made had been based on the material before it and, in each case, it had given detailed consideration of that evidence. It had given consideration to all of the appellant’s claims and had put him on notice of its concerns with some of this evidence. His Honour was satisfied that the reasons given by the Tribunal were not legally unreasonable and contained no discernible error of law, and that the Tribunal had been procedurally fair.

23    His Honour referred to the appellant’s attempt before him to rely on a document purporting to be a membership form for the BNP as proof of the appellant’s membership of that party. The primary judge addressed this issue at [22] of his Honour’s reasons for decision as follows:

The Tribunal’s findings in relation to that document, at [49], are not apparently affected by any error. The Tribunal stated in relation to the document:

I do not accept that my concerns about the Applicant’s claim to be a member of BNP can be overcome by the documents that he has submitted. As I put to the Applicant, the country information available to the Tribunal indicates that fraudulent documentation was readily available in Bangladesh. In this context, I have placed little weight on the BNP membership certificate and it does not overcome my concerns about the credibility and plausibility of the Applicant’s oral and written testimony.

24    For those reasons, the primary judge dismissed the application for judicial review.

The Appeal to this Court

25    Once again, the appellant before me was not represented by a lawyer. His handwritten grounds of appeal were as follows:

I am not satisfied with the judgement. During the RRT hearing I provided a document to the Immigration Officer and he said it was a fake. During the FCC hearing I told the judge that it had not been a fake but the judge did not respond to that. At the RRT hearing the officer did not believe anything I said to him or any documents I gave him. I told this to the judge at the FCC hearing but I feel he did not consider this.

At no time have I had a lawyer to help me. The original date of my FCC hearing was May 18 2018 but on March 1 2018 a letter was written to me saying the hearing date was 13/4/18. This shortened the time I had to prepare.

(Errors in the original.)

Before me, the appellant made no submission concerning the ground of appeal relating to the genuineness of his membership documents.

26    In relation to his complaint that the hearing before the primary judge had been rescheduled, he submitted that, at the time, he was in a vulnerable position, and he was unemployed and was focused on getting work. Upon being notified of the change in date of the hearing below, he commenced to seek to get documents from Bangladesh, but could not because of the situation in that country at that time. Many of the officers he had known, which I infer might have helped him, were no longer there.

27    The appellant otherwise submitted that he remained unemployed and vulnerable, and that the situation in Bangladesh remained difficult. He has continued to try to contact individuals in that country who, I infer, might have helped him, but without any success. He has been away for six years, and he said there has been so much change in Bangladesh it had made it problematic for him to prepare his case. He also submitted, candidly, that he had not prepared for his appeal because his real focus had been on securing employment. He said his vulnerability explained the inconsistencies in his evidence. He also said that the time taken to be heard in Court has meant that he has forgotten what to do.

28    In response, in relation to the issue concerning the genuineness of the BNP membership certificate, the Minister submitted that the primary judge had considered this issue and found that it was not a decision that was unreasonable in the legal sense and that the appellant’s concerns about the certificate amounted to impermissible merits review. It appears, so the Minister submitted, that the appellant’s concern regarding the certificate is primarily that it was not accepted as proof that he was a member of the BNP. Insofar as this ground seeks merits review of the Tribunal’s decision, it was submitted that it is not the role of this Court or the primary judge to review the merits of the appellant’s claims. I agree with that submission.

29    In relation to the rescheduling issue, the Minister submitted that no jurisdictional error of law arose from that fact. The Minister made the following submissions in support of his contention:

(a)    The appellant had almost two years to prepare for the Federal Circuit Court hearing. The application for judicial review was filed on 5 May 2016, almost two years before the final hearing.

(b)    The appellant states in his notice that he was notified on 1 March 2018 that the hearing had been rescheduled from 18 May 2018 to 13 April 2018. The notification was received over six weeks before the final scheduled hearing.

(c)    The appellant did not request an adjournment of the hearing before the Federal Circuit Court.

(d)    At the hearing before the Federal Circuit Court the appellant did not refer to any difficulties caused by the rescheduled hearing.

I generally agree with these propositions as supporting the conclusion that the rescheduling of the trial before Judge McNab did not involve an error of law.

30    I have listened carefully to what the appellant has said to me today, and I sympathise with him. Unfortunately, the time for gathering evidence and making submissions about facts has passed. This Court, in an appeal from a judicial review application in the Federal Circuit Court, generally speaking, cannot consider fresh evidence concerning the correctness of facts found below in the Tribunal: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912, at [10]-[11] per Gordon J.

31    The difficulties the appellant faced as an unemployed man are understandable, and I accept that he has had difficulties in preparing his case as one would expect for a self-represented party, but, unfortunately for him, these difficulties do not sound in jurisdictional or appealable error. I am otherwise satisfied that the appellant, who was represented in the Tribunal by a registered migration agent, was given a full and fair hearing which included the making of submissions after the hearing had ceased.

32    For these reasons, the appeal should be dismissed.

Associate:

Dated:    4 February 2019