FEDERAL COURT OF AUSTRALIA

API16 v Minister for Immigration and Border Protection [2019] FCA 48

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

GLEESON J:

1    The appellant appeals from the decision of the Federal Circuit Court of Australia (“FCCA”), delivered on 22 February 2018, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 2 March 2016: API16 v Minister for Immigration & Anor [2018] FCCA 370. The Tribunal affirmed a decision of a delegate of the first respondent (“delegate”), dated 23 October 2014, not to grant the appellant a Protection (Class XA) visa (“protection visa”).

2    At the hearing of his appeal, the appellant represented himself. He filed written submissions and, with the assistance of an interpreter in the Bengali language, made oral submissions in support of his appeal.

Background

3    The appellant is a male citizen of Bangladesh. He arrived in Australia as an irregular maritime arrival on 6 May 2013. The appellant subsequently applied for a protection visa on 6 September 2013, claiming that (in summary):

(1)    He is Bangladeshi and a Muslim.

(2)    He was a “strong supporter” of the opposition Bangladesh National Party (“BNP”), often attending and organising meetings and providing help where needed.

(3)    He was unable to vote as he did not hold a National ID card. He had attempted to obtain a National ID card, but had been prevented from doing so by the Awami League (“AL”) as the AL wished to prevent him from voting for the BNP.

(4)    In February 2012 he was attacked outside his village by members of the AL. These members beat him with a steel rod and threatened to kill him if he did not join their party or, alternatively, pay them money. He suffered a major injury to his right hand. The appellant informed his assailants that he could not pay them or join their party and they threatened to kill him should he not join them.

(5)    On many occasions members of the AL visited the appellant’s place of work to demand money from him and to attempt to force him to join their party.

(6)    He could not bear this treatment any longer and so, fearing for his life, fled to Malaysia and ultimately to Australia.

(7)    He feared for his life should he return to Bangladesh because the AL is in power and he is therefore regarded as an enemy of the Bangladeshi government, such that the government would not give him protection.

Delegate’s decision

4    By his decision record of 23 October 2014, the delegate refused to grant the appellant a protection visa. The delegate found that the appellant was a “low-level” supporter of the BNP. However, the delegate did not accept that the appellant had a high political profile in Bangladesh; that he would be viewed as a threat by the AL, or any other group or individual in Bangladesh; or that he was attacked, harassed or threatened by supporters of the AL.

Tribunal hearing and decision

5    The appellant applied for review of the delegate’s decision by the then Refugee Review Tribunal on 28 October 2014. On 19 February 2016, the appellant provided submissions to the Tribunal making the following new claims under cover of a letter which stated that “until now, I failed to disclose some of the core issues of my claim” and requested that the Tribunal take them into account:

(1)    He was married to a Hindu woman and had been persecuted by her uncle because of their inter-faith marriage.

(2)    Members of his extended family and other Muslims in his mosque were unhappy that he had married a Hindu woman without first converting her to Islam.

(3)    His family in Bangladesh were involved in the politics of the BNP and he feared political vengeance from the AL.

6    The appellant appeared at a hearing before the Tribunal on 24 February 2016 to give evidence and present arguments in support of his review application.

7    The Minister’s written submissions summarised the Tribunal’s decision as follows:

6    After considering the appellant’s evidence in relation to seeing a psychologist in December 2015, the AAT concluded that the appellant was able to give meaningful responses to the questions being asked at the hearing, and that he had been given a real opportunity to put evidence and submissions in support of his case (at [11]). The AAT considered the appellant’s general credibility at [12] - [14] and was not satisfied that he was a credible witness.

7    Having considered the evidence before it, the AAT found that the appellant had embellished, if not fabricated his involvement with the BNP. However, the AAT accepted that the appellant supported the BNP but that this support was that of a mere occasional participant (at [19]).

8    The AAT did not accept that the appellant was harmed or harassed by the Awami League or that he had any profile that would motivate this treatment (see [20] - [22]). Additionally the AAT found that the appellant would not be harmed in Bangladesh if he re-engaged in his BNP activities (see [23]). After considering the evidence and claims before it, the AAT accepted the appellant’s claim that he was attacked in February 2011 but found that the attack related to a random robbery and was not for any reason stated by the appellant (see [26] - [28]).

9    The AAT considered the appellant’s new claims in the submission of 19 February 2016 but ultimately rejected them as it was not satisfied that the appellant had provided a sufficient reason as to why these claims had not been raised earlier and was satisfied that the claims were false (see [29] - [39]).

10    After considering country information, the AAT found that the appellant would not face a real chance of persecution for his minimal political activities in Bangladesh (see [41]- [45]). The AAT also found that the appellant did not have a real chance of suffering any harm for reason of his religion (see [46] - [48]). The AAT did not accept that the appellant would face a real chance of suffering serious harm for reason of his unlawful departure nor for reason of being a failed asylum seeker (see [49] - [55]).

11    The AAT then considered the alternative complementary protection criterion in relation to the appellant’s poor health and found that there was [no] real risk that the appellant would suffer significant harm, now or in the reasonably foreseeable future. The AAT found that any lack of sophistication or inadequacy of medical services provided would be due to the lack of available resources in Bangladesh and not any form of intentional discrimination (see [59] - [66]).

8    On this basis, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

FCCA decision

9    At [19] of his Honour’s reasons, the FCCA judge records that the appellant relied on five grounds of review at the FCCA hearing, namely:

1.    The [Tribunal] made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the first respondent.

2.    The manner in which the [T]ribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the [T]ribunal did not bring an impartial mind to the resolution of the matter before it.

3.    The [Tribunal] has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1) (c) and (d) of the Migration Act 1958.

4.    The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

5.    The applicant was deprived of the natural justice and procedural fairness. The Tribunal did not give neutral view in assessing/reviewing the applicant’s claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

10    At [20] of his Honour’s reasons, the FCCA judge interpreted the particulars to the appellant’s first ground as suggesting that:

a)    the Tribunal disregarded, or did not handle, the new information submitted to the Tribunal on the hearing date; and

b)    the Tribunal relied upon country information and inconsistencies in the Applicant’s claims as made previously and as made before the Tribunal, and failed to put those inconsistencies in writing to the Applicant for comment;

and thereby the Tribunal committed legal error.

11    The Minister’s written submissions identified the FCCA judge’s key findings as to the first ground of review as follows:

15    In respect of the first ground, his Honour considered that the topic of the appellant’s new claims was raised at 8.31 of the AAT hearing transcript, while discussion of the claims had commenced at 9.37 [21]. Further, his Honour found that the AAT expressly dealt with these claims at [29]-[39] of the decision record [(22]).

16    His Honour found that the AAT was entitled to consider independent country information and inconsistencies in the appellant’s claims for protection as made to the Department, delegate and AAT ([23]) and did not consider the inconsistencies referred to in the AAT decision were required to be put to the appellant either orally or in writing ([26]).

17    His Honour found that to the extent the first ground could be taken as suggesting the AAT found that the documents relied on by the appellant were ‘not genuine’ or ‘fraudulent’, there were no findings made by the AAT in relation to the documentation provided ([28]).

18    Finally, his Honour found there was no obligation for the Tribunal to request information from the appellant or third parties under section 424(1) as argued in the appellant’s particulars ([29]).

12    As to grounds two, three and four, the Minister’s written submissions summarised the FCCA judge’s reasoning as follows:

19    With respect to the second ground, his Honour found that there was no basis for any claims by the appellant that he had suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the AAT ([37]). Having regard to the AAT’s written decision at [38] and the hearing transcript at [39], his Honour did not consider either of these documents demonstrated prejudgement, actual bias, or gave rise to any reasonable apprehension of bias.

20    His Honour also considered the third ground failed to establish jurisdictional error ([41]). Pointing to a specific exchange regarding the AAT member questioning the appellant as to whether him not seeing his wife in two years suggested the marriage was over, his Honour did not consider anything in that exchange indicated actual bias or gave rise to an apprehension of bias ([43]). Based on section 423A and the required contents of a decision record within section 430(1), his Honour considered the appellant had failed to establish that he had been denied natural justice or procedural fairness by the AAT ([44]).

21    In respect of the fourth ground, his Honour found that there was no basis in the decision record or hearing transcript that could give rise to an inference that the AAT member was preoccupied or had prejudged the application for review ([46]). To the extent the appellant complained about the process of him being sworn to tell the truth at the commencement of the AAT hearing using the Koran as he was a Sunni Muslim, his Honour found this was incapable of establishing any error on the part of the AAT ([52]).

13    At [54]-[55] of his Honour’s reasons, the FCCA judge describes ground five, and the argument put by the appellant as to it at the FCCA hearing, as follows:

[54]    This Ground asserts that the Tribunal did not afford procedural fairness to the Applicant and did not give him an opportunity to present his case in a correct manner. At the hearing this Ground was amplified by the Applicant submitting that at the hearing before the Tribunal he was not given any hearing and was not given a chance to put his points because the Tribunal told him to answer “in yes or no”. He then asserted he was not given a hearing but was just thrown out of the Tribunal room and had to answer “in yes or no”. He claimed he “just got stopped” when he wanted to say something to the Tribunal member.

[55]    He further criticized the Tribunal for conducting the hearing in 90 minutes and then delivering its Decision Record “very quickly” in eight or nine days.

14    The Minister’s written submissions describe the FCCA judge’s reasoning as to this ground as follows:

22    In respect of the fifth ground, his Honour held that this ground also failed ([52]). His Honour considered that the transcript established that the AAT treated the appellant with courtesy and politeness and gave him every reasonable opportunity to give evidence and present arguments ([57]). The appellant’s criticism of the length of the AAT hearing and the timing of the AAT’s delivery of the decision record was unfounded and did not establish jurisdictional error ([65]-[67]).

15    Having rejected all of the appellant’s grounds of review, at [68] of his Honour’s reasons, the FCCA judge dismissed the appellant’s application for review.

Appeal to this Court

16    The appellant’s notice of appeal contains two grounds under the heading “grounds of appeal”. Under the heading “grounds of application”, there are five numbered paragraphs which repeat some elements of the grounds of review in the FCCA, particularly grounds 1, 2, 3 and 5 of the grounds of review. Although the position is not entirely clear, I have addressed these paragraphs as independent grounds of appeal except for paragraph 2, which is unintelligible and which the appellant did not attempt to explain.

17    Prior to the hearing, the appellant filed written submissions which were repetitious and confusing in parts. It is not obvious that the submissions were confined to the grounds of appeal. However, as they were addressed in their entirety by the Minister, it is convenient to deal with them in full.

Notice of appeal “Ground of appeal” 1

18    “Ground of appeal” 1 states:

The Hon. Federal Circuit Court (FCC) in its decision ignored some legal issues which were not clearly explained in the judgment delivered on 1 March 2018. The Hon. Court has denied the appellant’s natural justice. There is no reason to make decision in favour of the respondent.

19    Except to the extent of arguments identified below, the appellant did not advance written or oral submissions directed to this ground. For the reasons which follow, I am satisfied that the FCCA judge did not fail to address any relevant legal issue or deny the appellant procedural fairness.

20    Accordingly, this ground must fail.

Notice of appeal “Ground of appeal” 2 and “Ground of application” 4

21    “Ground of appeal” 2 states:

The [Tribunal] did not follow the procedural fairness in reviewing the refusal of the appellant’s protection visa application. It is apparent that Tribunal has not acted in accordance with the prescribed law and Act.

22    “Ground of application” 4 states:

The [Tribunal] has denied the appellant’s natural justice and procedural fairness pursuant to s424A and 424B(1)(a) and (b) of the Migration Act 1958.

23    Much of the appellant’s written submissions, and the entirety of his oral submissions, were directed to whether the FCCA judge erred in finding that the appellant was not denied procedural fairness by the Tribunal.

24    In summary, the appellant contended that:

(1)    The Tribunal interrupted his answers to questions and confined him to giving “yes or no” answers in response to long questions.

(2)    The Tribunal did not understand him and, in particular, said words to the effect that he was guessing or making assumptions about what the appellant was trying to convey.

(3)    The Tribunal hearing was overly brief, concluding in 90 minutes.

(4)    The Tribunal did not provide adverse information which it relied upon to the applicant for comment including country information and, perhaps, elements of the delegate’s decision upon which the Tribunal relied.

Interruption and “yes or no” questioning

25    The following exchange on p 14 of the Tribunal hearing transcript, concerning the appellant’s attendance at BNP meetings in Sydney, is representative:

MR NORMAN: You don’t attend all the time, it would seem … about six meetings, you may have been to two or three out of six.

THE INTERPRETER: No. It’s like whenever they ask me, whenever they inform me, I go. I attend.

MR NORMAN: Okay. Well, you’re not going to tell me so I don’t understand why you don’t- can you give me a bit more of a clearer response than the one you’ve provided. You don’t want to tell me. You said that you were a member of this group 40 for about 12 months. They have a meeting every second month so that’s approximately six meetings since you’ve allegedly become involved in this group. You’ve already told me you don’t attend every meeting. You only attend when you’re asked. So the question you’ve got at the end of this- the question is that correct: yes or no? No. Please. Just-

THE INTERPRETER: Okay. Sorry. Sorry.

MR NORMAN: My apologies.

THE INTERPRETER: Yes.

MR NORMAN: Listen to the interpreter because it will allow you to understand what it is I am asking you. Yes or no.

THE WITNESS: Yes.

THE INTERPRETER: Yes.

26    This issue was addressed by the FCCA judge at [56] to [64] of his Honour’s reasons. At [57], the FCCA judge concluded that the Tribunal treated the appellant with courtesy and politeness and gave him every reasonable opportunity to give evidence and present his arguments. At [63], the FCCA judge stated that, on his Honour’s reading of the transcript of the Tribunal hearing, his Honour was satisfied that the Tribunal did not excessively interrupt the appellant or often ask him to confine his answers to a yes or no response.

27    The FCCA judge relevantly referred to the following statement of the Full Court stated in T v Minister for Immigration & Multicultural Affairs [2000] FCA 467 at [21]:

The hearing before the Tribunal is “semi-inquisitorial”: Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 per Davies J. It is not of itself indicative of bias, in that context, that the decision-maker should on occasions interrupt answers which are not responsive to the question asked, or persist in asking questions which have not been answered or inadequately answered.

28    Likewise, reasonable interruption and specific questioning is not indicative of a denial of procedural fairness in the context of a Tribunal hearing.

29    The appellant did not identify any particular evidence that he was precluded from giving by the manner in which the Tribunal conducted the hearing, or how he was adversely affected in any way by the Tribunal’s conduct. In the absence of any such matter, I am not satisfied that the FCCA judge erred in failing to identify any relevant denial of procedural fairness.

Understanding & transcription problems

30    The appellant pointed to (a) moments in the Tribunal hearing transcript where he suggested that the Tribunal had failed to understand him and (b) “gaps” in the transcript.

31    Regarding (a), the following exchange, appearing on pages 22 and 23 of the transcript, which followed the appellant’s evidence that it would not be safe for him to return to Dhaka, is representative:

THE INTERPRETER: Even the- just like not long ago- yesterday, an Awami League supporter. They wanted to ... the city line. They wanted to electric the city line to my home.

MR. NORMAN: I’m sorry. I have no idea what you just said. So can you ...

THE INTERPRETER: Even though something happened yesterday, Awami League supporter ---

MR NORMAN: Even though something hasn’t started---

THE INTERPRETER: No. Something happened yesterday – yesterday – today, yesterday – something happened back in my village. The Awami League supporter they wanted to take the electricity line over my home.

MR. NORMAN: Okay. Now, I understand what you have just said: that approximately one year ago – approximately yesterday.

THE INTERPRETER: Just yesterday.

MR NORMAN: Okay. So, yesterday, an Awami League supporter wanted to do something with the electricity over your family home where your father and mother live. So what did they want to do with your electricity?

THE INTERPRETER: Okay. Because we are BNP supporter – so what Awami League supporter did – they wanted to take the electricity line over my home and because of my history that we are BNP supporter and they just did it.

MR NORMAN: No. I still don’t know what you’re talking about. What - say that - I have no idea what you’re talking about. I don’t know you’ve said ... Mr Interpreter. I will tell you what I think that might be being said here. Your family has electricity which goes to your family home. Say that. Because of some dispute with the electricity company, the electricity company wanted to cut off the electricity to your family home. You say that’s because there was no dispute that what the issue was the person who wished to cut off electricity from your home was an Awami League supporter and he knew you that your family were BNP supporters. I’m, sorry. I really want a yes or no response because I---

THE WITNESS: No.

THE INTERPRETER: No.

MR NORMAN: Okay. Which part of that was incorrect?

THE INTERPRETER: Because of my political involvement- so it’s like one of the Awami League supporter taking his – the electricity line to my home illegally.

MR NORMAN: No. I still don’t understand what that means. Say that: I do not understand what that means? Now, I’m ---

THE INTERPRETER: All I wanted to say – one of the Awami League supporter he wanted to take his electricity line through my home illegally because they knew we are BNP supporter.

32    In my view, neither this exchange nor others like it reveal any jurisdictional error. Evidently, the appellant had some difficulties in communicating aspects of his claims. However, the appellant did not identify any aspect of his claim that was not understood or was misunderstood by the Tribunal, or any respect in which the appellant was not given an adequate opportunity to advance some particular claim which was not addressed by the Tribunal: cf SZUYU v Minister for Immigration and Border Protection [2018] FCA 786 at [71]-[82] (special leave refused: [2018] HCASL 320).

33    Regarding (b), the following examples, appearing on page 19 of the transcript, are representative:

MR NORMAN: That’s okay. Just listen to ... you are now saying that that was all an innocent mistake and because your new claims relate to an incident in February 2011, but this attack occurred on you in February 2011, not February 2012, as you had initially claimed.

THE INTERPRETER: Well, I was beaten by ... end of 2011.

…

MR NORMAN: Yes. There was pressure placed on you over the next month, and 25 on 25 March 2011 you eloped with [your wife] and you went to ... I understand, in Dhaka.

THE WITNESS: Yes.

34    As Ms Hillary submitted, without more, these “gaps”, represented by the ellipses in the transcript, do not reveal any denial of procedural fairness or other error in the conduct of the Tribunal hearing. In the ordinary course, transcripts may contain gaps where there is a pause, or where the transcriber is unable to hear a speaker and it is a matter for evidence whether the gap is significant. The appellant did not give evidence that any particular statement was incorrectly omitted from the transcript.

Brevity of hearing

35    As to the third argument, on the materials before me, I see no reason to doubt the FCCA judge’s conclusion at [65] of his Honour’s reasons that the Tribunal hearing was not unreasonably short or cut off prematurely. To the contrary, the Tribunal took time to work through points of concern with the appellant: see, for instance, the exchange extracted at [31] above.

Tribunal did not provide information which it relied upon to the applicant for comment

36    As the Minister submitted, in the migration context, per s 422B, the Tribunal’s procedural fairness obligations are exhaustively codified in Div 4 Pt 7 of the of the Migration Act 1958 (Cth) (“Act”): see Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 at [51]. The general principle expressed by Brennan J in Kioa v West [1985] HCA 81; 159 CLR 550 at 629 that “in the ordinary case… an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision being made” that the appellant pointed to therefore does not aid his case.

37    Rather, s 424A(1) of the Act obliges the Tribunal, in certain circumstances, to put information to an applicant that would be the reason, or part of the reason, for affirming the decision under review; ensure, as far as reasonably practicable, that the applicant understands the relevance of the information and the consequences of the Tribunal’s reliance on it; and to invite the applicant to comment on or respond to it. Section 424B prescribes the nature and requirements of a s 424A invitation.

38    The Minister submitted that no information capable of enlivening the s 424A(1) obligation was relied upon by the Tribunal. I accept this submission because:

(1)    The appellant provided the delegate’s decision record to the Tribunal upon applying for review, meaning the Tribunal was not obliged to put to him any information it relied on from the delegate’s decision: s 424A(3)(ba) of the Act.

(2)    The Tribunal was not obliged to put to the appellant any country information which was not specifically about him or another person: s 424A(3)(a) of the Act.

(3)    Inconsistencies in the appellant’s evidence to the Tribunal do not constitute no “information” within the meaning of s 424A(1). As the FCCA judge correctly notes at [23] of his Honour’s reasons, this is because such material does not itself constitute a “rejection, denial or undermining” of the appellant’s claims to a protection visa: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]; Minister for Immigration and Citizenship v SZFLX [2009] HCA 31; (2009) 238 CLR 507 at [22].

(4)    The appellant’s reference to material concerning his “political involvement, education and mental state” appears to concern specific inconsistencies in the evidence he gave to the Tribunal. For instance, at para 47 of its decision record, the Tribunal referred to the appellant’s education, noting that the appellant’s claim that he was forced to drop out of secondary school due to pressure concerning his religious practice was inconsistent with his concession that he completed both his secondary schooling and one year of tertiary education. Similarly, at para 10 of its decision record, the Tribunal noted that the appellant did not lodge any evidence from his psychologist in support of his claims, and recorded that it put to the appellant that his explanation that the “psychologist told him that unless the Department of Immigration (or presumably the Tribunal), requested evidence from them at least 6 times, the psychologist would not issue same” seemed “implausible”. The vague reference to material concerning the appellant’s “political involvement” appears to concern the various inconsistencies the Tribunal found in the appellant’s evidence regarding his involvement with the BNP. Therefore, for the same reason as is applicable to (3) above, none of this material is “information” within the meaning of s 424A(1) of the Act.

(5)    The definition of complementary protection in the Refugees Convention and Act is not “information” within the meaning of s 424A(1) of the Act; “however broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation”: SZBYR at [18].

Conclusion

39    None of the matters identified by the appellant reveal any denial of procedural fairness by the Tribunal. Accordingly, this ground of appeal also fails.

Notice of appeal “Ground of application” 1

40    “Ground of application” 1 states:

The Tribunal made error of law and failed to exercise the proper procedure in relation to make its decision. There is another serious legal issue which should be considered by the Hon. Court that the appellant has reviewed a Protection visa application of Class XD but not the application of Class XA which the appellant has applied for and the department decided on.

41    To the extent that this ground contended that there was a procedural failure by the Tribunal, it is addressed above.

42    As to the claim that the Tribunal assessed the appellant’s claim in relation to wrong class of protection visa, the appellant did not point to anything that might suggest that the Tribunal erroneously considered the appellant’s protection visa application to be for a Protection (Class XD) visa rather than a Protection (Class XA) visa. Nothing in the material before me suggests that this is the case. I therefore accept the Minister’s submission that no such error was made.

43    Consequently, this ground must also fail.

Notice of appeal “Ground of application” 3 and “Ground of application” 5

44    “Ground of application” 3 states:

The manner in which ‘the tribunal’ dealt with the application and the appellant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

45    “Ground of application” 5 states:

The tribunal was quite influenced and biased by the primary decision given by the delegate, which was why the appellant was denied natural justice and procedural fairness when the Tribunal formed the view about the appellant before the hearing.

46    In his appellant’s written submissions to this Court, the appellant said:

The applicant refers to the page # 22, Para # 15, (indistinct) of the Tribunal’s hearing transcript where Tribunal cruelly criticized about the applicant’s marital life and about his wife’s whereabouts. In replies to that criticize the applicant said, “Obviously, I am going to find her. I will.” In fact the Tribunal was desperate to discredit the applicant’s claim.

At this point it is clearly evident that The Tribunal has basically denied the applicant from natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

47    The appellant also said:

The Tribunal was heavily biased during the hearing which is evident in the their decision, made on 2 March 2017. In paragraph 47 of page 9 of the decision the Tribunal has commented,

“At the hearing, the applicant confirmed the he was “not very religious”, however, he was still a practicing Sunni Muslim [and] swore an oath on the Koran at the commencement of the hearing.”

In this at no point the Tribunal has offered a different choice (Affirmation or Oath) to the applicant. In fact the applicant was reluctantly compelled to swore on Koran when he was offered ‘Only’ one choice. The applicant refers to the transcript (para: 5 and 10 of page 2). In fact the applicant was denied even his rights from the very beginning of the hearing.

48    The appellant also asserted that the Tribunal “misjudged” the claim and did not have a “fresh look” at appellant’s claim.

49    The FCCA judge addressed a submission in similar terms to the submission at [46] above at [42] of his Honour’s reasons. The FCCA judge noted that the relevant portion of the transcript showed that the Tribunal put to the appellant “the straightforward proposition that if he had lost contact with his wife for two years then it could be inferred that his marriage was over”. His Honour then recorded the relevant transcript extract before concluding, at [43], that “nothing in this exchange indicates either actual bias or could give rise to an apprehension of bias. There was no cruel criticism of the [appellant’s] marital situation”. The material before me provides no reason to doubt this conclusion.

50    As to the matter of the oath sworn on the Koran, the appellant’s submissions show that he was not happy to have been compelled to swear on that book. However, the FCCA judge found ultimately that the appellant “chose to swear on the Koran because he is a Muslim”: [51] of the FCCA judge’s reasons. On this basis, the FCCA judge therefore concluded at [52] of his Honour’s reasons that the nature of the appellant’s swearing in before the Tribunal had no tendency to establish jurisdictional error. Although it is not clear, the gist of the appellant’s complaint is presumably that he was not given an opportunity to take an affirmation or to swear an oath in some other fashion (such as without a Koran). Accepting that a witness is entitled to take an affirmation if they object to taking an oath, the fact that the appellant reluctantly swore an oath on the Koran does not provide a foundation for a conclusion of bias or apprehended bias on the part of the Tribunal, or a conclusion of any other jurisdictional error.

51    The appellant did not demonstrate that there was any relevant “misjudgement” of his claim or any failure by the Tribunal to perform its function by reviewing the claim on its merits.

52    Accordingly, I am satisfied that these grounds do not identify any jurisdictional error on the part of the Tribunal or any error by the FCCA judge.

Other submissions

53    The appellant’s written submissions complained that the Tribunal had “overlooked some serious legal issues”, namely, as “the ‘Internal relocation’ issue was not raised and discussed by the tribunal, to comment on, during the review process”. As the Minister submitted, where the Tribunal had found that the appellant would not face a real chance or risk of harm upon return to Bangladesh, it was not required to consider whether the appellant could relocate internally. The Tribunal’s omission to consider this matter therefore reveals no jurisdictional error.

54    The appellant also complained that the Tribunal did not check whether the appellant understood the crucial issues pertaining to the definition of refugee. However, without any suggestion that the appellant did not understand any particular issue, this complaint goes nowhere.

55    The appellant also submitted that the Tribunal erred in finding that he was not a credible witness, asserting that there was no evidence to support the finding, that the Tribunal failed to have regard to the appellant’s mental state and his loss of memory and that the finding was unreasonable. The appellant did not provide any plausible argument in support of this submission and I do not accept that there was any such error. Among other things, including those noted at [38](4), the Tribunal pointed to one particular matter which was adverse to the appellant’s credit, being the discrepancy between the appellant’s claim in his protection visa application, as summarised at [3](4) above, that he was attacked with a steel rod by five members of the AL in early February 2012 and his subsequent indication that this incident may have instead occurred in February 2011 and related to his interfaith marriage rather than membership of the BNP. The Tribunal specifically rejected the possibility that a lapse in memory might explain this discrepancy, noting that “given the [appellant] departed Bangladesh in late February 2012, he would have known whether the alleged incident occurred either a few weeks, or 12 months prior to his departure”. This was a significant discrepancy and the Tribunal was entitled to rely on it as a matter reasonably reflecting adversely on the appellant’s credit.

56    The appellant’s complaint that the Tribunal suggested that the appellant could have sought protection in Malaysia is based on a misreading of the Tribunal’s decision record. The relevant passage is:

At the hearing, the applicant said he resided in Malaysia for approximately one year. However, the Tribunal does not understand the applicant had a legal right to remain in, or return to, Malaysia. Based on the evidence before the Tribunal, I accept this is correct. Consequently, on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5A) of the Act).

Conclusion

57    All grounds having failed, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    31 January 2019