FEDERAL COURT OF AUSTRALIA

DTL16 v Minister for Home Affairs [2019] FCA 125

ORDERS

THE COURT ORDERS THAT:

1.    The application to raise new grounds on appeal is refused.

2.    The appeal is dismissed.

3.    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

DERRINGTON J:

Introduction

1    The matter before the Court is an appeal from a decision of the Federal Circuit Court of Australia (FCC) of 16 August 2018. By that decision the FCC dismissed an application for judicial review of the Administrative Appeals Tribunal (the Tribunal) of 9 November 2016. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse to grant to the appellant a temporary protection visa.

Background

2    It is not necessary to set out the factual circumstances of this case in any great detail and an overview will suffice.

3    The appellant, DTL16, is a citizen of Bangladesh. Although before the delegate and the Tribunal he claimed to be a stateless person, the Tribunal found that he obtained citizenship in Bangladesh by reason of his birth there. He arrived in Australia on 6 May 2013 as an unauthorised maritime arrival. On 11 June 2014, he applied for a Class XA visa which was a protection visa, however, by reason of the operation of s 45AA of the Migration Act 1958 (Cth) (the Act) and reg 2.08F of the Migration Regulations 1994 (Cth), his application was taken to be one for a Temporary Protection (Class XD) visa.

4    In his application DTL16 made various claims which can be summarised as follows:

(a)    That he was stateless person whose race was Rohingya and he was a Sunni Muslim.

(b)    That he and his family do not have the right to reside in Bangladesh. He claims his parents were born in Myanmar and have no legal right to remain in Bangladesh where they live such that they regularly move around.

(c)    The appellant left Bangladesh for Malaysia in 2005 where he has continued to work.

(d)    Prior to leaving for Malaysia he worked as a fisherman and subsequently, when he was 17, he opened a shop in the local bazaar. He claims that it was difficult for him to operate the business because people looked down on him. He also says that he was extorted by the authorities to pay extortion money in the sum of 50,000 taka in order to continue his business. He claims that when he refused to pay his shop was ransacked and his property stolen. He further claims to have been assaulted and stabbed.

(e)    He said when he took the matter up with his landlord the persons who ransacked his shop returned and attacked him again. He further claims he was attacked by the same men in subsequent days.

(f)    He said that he fled to Malaysia in 2005 to avoid the troubles in Bangladesh, but he had no rights because of his race and lack of documentation and he was often harassed by Malay Indian men.

(g)    He claims that in recent times his family have had problems in Bangladesh including that his brother was compelled to assist the Bangladesh National Party (BNP) prior to the most recent elections and, after the elections, members of the Awami League came to his family’s house and assaulted his brother for his involvement with the BNP.

(h)    He asserts that his family was forced to flee to Malaysia and are now missing.

(i)    He says he fears persecution in Bangladesh because there was a data leak from the Department such that information about him appeared on its website and that he fears that the authorities in Bangladesh will identify and harm him.

5    As mentioned, the Tribunal rejected the application for a temporary protection visa. It did so after considering the claims which DTL16 advanced and after identifying the various claims he agitated. In particular, it found that he lacked credibility and many of his claims were not believable. In particular, it was not satisfied that he was an ethnic Rohingya. That conclusion undermined the rest of his claims.

The Notice of Appeal

6    The Notice of Appeal to this Court is described in the first respondent’s written submissions as being of a “template” nature. There would appear to be some force in that submission. The grounds in the Notice are as follows:

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

Particulars:

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

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

Particulars:

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

7    It is apparent that the particulars of the two grounds conflate and include a variety of alleged errors. Each of the grounds, to the best that they can be identified, will be dealt with in turn.

Ground one

8    Save in relation to the ground concerning DTL16’s credibility, the matters raised in ground one were not advanced before the FCC. It follows that leave is required to advance them on this appeal. The principles on which this Court might grant such leave were set out by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598-599 at [46]-[48] where it said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

9    The appellant advanced no explanation for the failure to advance before the FCC the grounds he now seeks to rely upon on this appeal. It is to be observed that he was represented before the Tribunal although not before the FCC and nor was he represented before this Court. In the circumstances the absence of any explanation is not necessarily fatal to leave being granted.

10    The Minister has not alleged that he suffers any prejudice because of the failure to advance the proposed grounds before the FCC. That is a very proper attitude to take although it must always be kept in mind that the orderly and efficient disposition of matters before the Courts is necessarily delayed and frustrated when new issues are raised on appeal. Moreover, as was said in VUAX, the appeal court should not become the first instance forum for the resolution of disputes.

11    Given the above, the quintessential issue is whether the proposed new grounds have any merit which might warrant the granting of leave.

12    As to the assertion that the Tribunal failed to consider DTL16’s claims or integers of claims and failed to consider whether he had a well-founded fear of persecution, it is unfortunate that the assertion is devoid of any substance. It is in completely generic terms and does not explain how the Tribunal erred, which claim or integer of a claim was not considered or how it was that the Tribunal did not consider whether DTL16 had the well-founded fear of persecution. On its face it has insufficient merit to warrant the grant of leave to allow it to be agitated on appeal. It might also be observed that the Tribunal undertook a thorough and careful consideration of the claims advanced to it. It identified the relevant criterion for whether a person is entitled to the status of a refugee under the Refugee Convention and it applied that statement of law to the facts which it found to exist. From a reading of the Tribunal’s decision it is impossible to identify any claim or integer of claim which was not taken into account and considered. In respect of each integer of each of the claims the Tribunal set out the evidence before it and made findings which were relevantly open. It also posed the question of whether DTL16 had a well-founded fear of persecution but, on the evidence and findings, found that he did not.

13    The second perceived part of ground one is that the Tribunal did not have jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act. This seems to be tied to the allegation that it denied the appellant procedural fairness by concluding that he was not a credible witness and that his claims were implausible. Such grounds have no merit. The Tribunal was entitled to reach the conclusion that DTL16 lacked credibility. It analysed the claims that he made or were made on his behalf and assessed the material and evidence which was advanced on his behalf to support them. The Tribunal considered the lack of clarity of his evidence in relation to many parts of his claims including his ethnicity, his parents’ background, his lack of understanding of Rohingya culture, heritage and history, the inconsistencies in the evidence which he gave, and the inconsistencies between the evidence he gave and the claims he made, particularly in relation to his life in Bangladesh and alleged attacks upon him. It placed particular weight on the lack of consistency as to his version of events surrounding these alleged attacks. The Tribunal also put to DTL16 matters with which it was concerned in relation to his credibility and offered him the opportunity to respond. He did so and submissions after the Tribunal hearing were also made on his behalf. There is nothing in the conduct of the Tribunal which suggests that it failed to exercise procedural fairness in reaching its conclusions about his credibility and claims. It follows that there is insufficient merit in this newly proposed ground to warrant the granting of leave.

14    The next particular in ground one is that the Tribunal did not ask DTL16 any Convention related questions concerning his alleged fear of persecution in his country of residence. That allegation appears to be a generic template ground derived from some other case (see Flick J in SZLHM v Minister for Immigration and Citizenship [2008] FCA 754, [35]-[36]). This ground is particularly inapt for the purposes of this appeal. Firstly, it is to be observed that no record of the hearing before the Tribunal has been tendered such that there is no factual foundation which might support this contention. Second, a reading of the Tribunal’s reasons reveals that it questioned DTL16 in respect of a number of matters relevant to his claim of a fear of persecution. In particular, the reasons discussed in detail the alleged attacks upon him which he claimed were supported by the authorities or people with authority. See in particular paragraphs [29], [33]-[34], [38], [39] and [42] of the Tribunal’s reasons. Third, it must also be kept squarely in mind that at the review hearing before the Tribunal DTL16 was represented by a registered migration agent. Necessarily that person would have been aware of the evidence which would have been relevant to the Tribunal and would have advanced the same to the Tribunal had it been available. It follows that there is insufficient merit in this particular of ground one to justify the grant of leave to raise it on appeal.

15    The last remaining particular of ground one concerns the issue of the appellant’s credibility. This is discussed further below.

Ground two

16    The second ground of appeal agitated seeks to attack the Tribunal’s decision on the basis that it failed to believe DTL16 was a credible witness. It claims that by that failure the Tribunal breached its obligation under s 425 of the Act. Again, the ground of appeal and the associated particulars are broad assertions without any substantive particularity to them. As the first respondent observes in his written submissions, this ground was agitated before the FCC. In the reasons of that Court the learned judge considered the Tribunal’s findings on credibility in detail. Of the various credibility findings, the most significant was the determination that DTL16 was not an ethnic Rohingya as he had claimed. The learned judge below observed that the Tribunal had asked DTL16 extensive questions about this claim and considered in detail his responses. It found that the conclusion the appellant was not a Rohingya was reasonably open on the material. Necessarily, that conclusion had subsequent serious consequences for any conclusion about his credibility and the veracity of DTL16’s claims for protection. In particular, it undermined claims that he was persecuted because of his ethnic status.

17    The first respondent submits that the Tribunal’s conclusion that DTL16 was not a credible witness was a finding of fact for the Tribunal to make: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, [67]. He says that the ground DTL16 seeks to advance in this respect is no more than one which attacks the finding of fact that the appellant was not a credible witness. Again, the assertion in the particulars to this second ground are devoid of any substantive identification of the underlying nature of the alleged allegation. That being so it is difficult to ascertain the gravamen of the appellant’s complaint in this respect. However, the perusal of the Tribunal’s reasons disclose a logical and intelligible justification for the conclusion which it reached about DTL16’s credibility. As mentioned, the Tribunal compared DTL16’s claims with the evidence he gave. It found his evidence to be implausible and inconsistent in many respects. Moreover DTL16’s inability to provide specific or adequate evidence about matters on which he should be knowledgeable if his claims were true was important to the Tribunal. In particular, evidence that his father owned a boat and that he owned a business were contrary to the suggestion that he and his family had no rights. The Tribunal was also concerned with the many inconsistencies in DLT16’s identification of the circumstances in which he was allegedly attacked whilst a shopkeeper, as to any interactions with the BNP and what he did in relation to that, his travel to Malaysia and his reasons for doing so and the circumstances surrounding the alleged extortion. These matters were sufficient to reach the conclusion that the Tribunal’s findings as to credibility were not irrational or unreasonable: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

18    Given the foregoing there is no merit in the ground that any jurisdictional error infected the Tribunal’s conclusion that DTL16 was not a credible witness.

19    The last apparent particular of ground two appears to be an assertion that the Tribunal failed to comply with its procedural fairness obligations set out in Pt 7 Div 4 of the Act. Again, the assertion is bald and devoid of particularity. However, the material shows that DTL16 was invited to attend a hearing before the Tribunal by a letter of 19 September 2016. He did so via videolink and with the assistance of a migration agent and a Bengali interpreter. The hearing occurred on 26 September 2016 during which issues that troubled the Tribunal as to the appellant’s credibility were discussed with him. These instances are described in the Tribunal’s reasons. Further, DTL16 was provided with the opportunity to provide post-hearing submissions addressing the issues of his credibility and he did that with the assistance of his migration lawyers. It is apparent that DTL16 was afforded a sufficient opportunity to give evidence and present arguments about his credibility such that the procedural fairness obligations of the Act were satisfied. Whilst the conclusion on credibility was determinative of his application before the Tribunal, no jurisdictional error arises.

20    It follows that there is no merit in any of the particulars in ground two which might justify allowing the appeal.

Data breach issue

21    At the hearing of the appeal the appellant raised the issue that a data breach in respect of the records of the Department had the consequence that he would be at risk of harm if returned to Bangladesh. Inferentially, it seems that he had concerns with the manner in which this issue was dealt with by the Tribunal. Although this issue was not raised in the Notice of Appeal the Minister’s representatives did not object to it being agitated and that was a very proper attitude to take.

22    The Tribunal dealt with the question of whether the data leak would expose the appellant to a risk of harm or persecution were he to be returned. It found that the Department did not leak anything about his claims or anything which he might have said about Bangladesh as part of the data breach which occurred in February 2014. The only information which became available were his name, date of birth, nationality, gender and details about his detention. Although the Tribunal considered the claim that the appellant fears that his life will now be in danger, it concluded on the basis of country information concerning the situation of returnees that he will not face a risk of harm if he was returned. The DFAT reports indicated that returnees were not subject to adverse treatment or attention save that they did show interest in high profile individuals who engaged in political activities. The appellant did not claim to have a high profile in politics in Bangladesh.

23    The primary judge could find no jurisdictional error in the manner in which the Tribunal dealt with the issue of the data breach. On appeal the appellant has not been able to demonstrate that any existed. It is apparent that the Tribunal considered all of the relevant material and reached a conclusion which was supported by the evidence. It follows that there was no error by the learned primary judge in not allowing the application for review on this ground.

24    The ground of appeal in relation to the data breach must also be rejected.

Conclusion

25    There is nothing in the grounds of appeal or their supporting particulars which have any merit. Likewise there was no error committed by the Tribunal in the manner in which it considered the 2014 data breach. To the extent to which leave was required to raise new issues on appeal that leave ought to be refused. To the extent to which the grounds of appeal reflect arguments raised in the Court below, those grounds are unsustainable.

26    It follows that the orders of this Court are:

(a)    The application to raise new grounds on appeal is refused.

(b)    The appeal is dismissed.

(c)    The appellant pay the first respondent’s costs of the appeal.

Associate:    

Dated:    14 February 2019