FEDERAL COURT OF AUSTRALIA

BVV16 v Minister for Home Affairs [2019] FCA 137

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is 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

DERRINGTON J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC) delivered on 13 August 2018 which dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 June 2016. The Tribunal affirmed a decision of the Minister for Immigration and Border protection not to grant BVV16 a protection visa.

Background

2    BVV16 is a citizen of Bangladesh. He arrived in Australia in March 2013 by boat. He applied for a protection visa in July 2013. When doing so he provided a statutory declaration dated 28 June 2013 in support of his application. He made claims to a fear of harm in Bangladesh based on a past relationship with a young woman (named Aki) whose brothers belonged to the Awami League (AL) and because of his support for a political organisation referred to as Jamal E Islami (JI). He made several claims of being attacked by the AL members which he claimed were due to his political affiliation.

3    On 29 September 2014, BVV16 sought review of the delegate’s decision by the Tribunal. Prior to the hearing before the Tribunal he provided submissions and a further statement which was said to clarify the claims on which he had originally founded his application. He appeared at the hearing, represented by a registered migration agent. He gave evidence with the assistance of a Bengali interpreter. In his pre-hearing submission it was claimed BVV16 feared harm on account of his imputed or actual political opinion as being pro-JI and/or pro-Bangladesh Nationalist Party (BNP) and/or an imputed or actual political opinion of being opposed to the AL. Alternatively he claimed he feared harm from AL on account of his relationship with Aki whose brothers he claimed had political influence in AL so as to be able to target him. Further, his migration agent provided a post-hearing submission on his behalf.

4    The Tribunal dealt in detail with the variety of claims advanced by BVV16. In general it found that his evidence was vague, evasive, implausible, contradictory and unconvincing. It also found that throughout the process he had made a number of new claims and that there were inconsistencies in his evidence and that his conduct was not consistent with his claims. The Tribunal’s reasons detailed its concerns in relation to BVV16’s credibility and the veracity of his claims. It concluded that he was not a witness of truth and he had fabricated material parts of his assertions for the purposes of obtaining a visa.

5    In particular, the Tribunal considered at length his claims to have had associations with JI. It reviewed the evidence which he had provided in the course of the hearing and afterwards and concluded:

30.    Having considered the applicant’s claims and evidence in relation to JI, the Tribunal has concerns about the credibility of his claims. His evidence in relation to when he joined JI kept changing. The Tribunal finds his evidence that he was not aware of whether his father, brothers or any other family members were involved with JI to be implausible. The Tribunal finds it implausible that the President of JI would have asked him to speak to the media about the party when he was aged 18 years old. He was unable to answer any questions in relation to the policies of JI. The Tribunal would expect that if he attended meetings of the JI on a regular basis he would have some knowledge of JI’s policies. He was not aware of the differences between AL and JI.

31.    The applicant gave evidence that he continued to support JI whilst living in Malaysia and in Australia. When asked how he has supported JI whilst living in Australia, he was evasive and eventually stated that it was not possible to do so. The Tribunal is of the view that this is general knowledge that has had a lot of media coverage both in Bangladesh and internationally. When asked whether his family had any problems because of his membership of JI, he was evasive and then claimed that they were attacked like he was attacked. He has never previously claimed that his family was attacked because of him. However, his evidence then indicated that they were not attacked but were questioned about his whereabouts and warned that if he was still in the village there would be a problem.

6    The Tribunal also expressed numerous concerns as to BVV16’s alleged relationship with a young woman called Aki. After a lengthy review of the material provided by the appellant on this topic it concluded:

43.    The Tribunal has a number of concerns in relation to the applicant’s evidence. The Tribunal finds his account of his one year relationship with Aki to be implausible. He gave evidence that he tried to keep his relationship with her a secret. He stated that they would meet in a park or at a friend’s home. The Tribunal finds it implausible that they would meet in a public place like a park in a village if they were trying to keep their relationship secret. It is also unlikely that they would have been able to do this for 12 months before they were discovered.

44.    The Tribunal finds it implausible that the applicant and Aki met at a friend’s home for 12 months without his friend’s family finding out. Alternatively, the Tribunal finds it implausible that his friend’s parents were aware of their meetings in their home, condoned it and kept it a secret. The country information indicates that Bangladesh has a conservative, patriarchal Muslim society. The Tribunal finds it highly unlikely that a young, single woman from a village in Bangladesh would have put herself in such a compromising situation and would have risked the loss of her reputation and that of her family, incurring the wrath of her family and the condemnation of the community.

7    Throughout the reasons of the Tribunal it is recorded that it had many concerns about the inconsistencies in the evidence given by the appellant. It put its concerns to BVV16 pursuant to s 424AA of the Migration Act 1958 (Cth) (the Act) and it addressed the explanations provided by the appellant’s migration agent on his behalf.

8    In its reasons the Tribunal identified that it was particularly concerned that BVV16 claimed Aki’s brothers had filed charges against him with the local police which apparently included charges of rape and the ransacking of Aki’s parent’s house. However, his evidence about this was lacking in detail and vague. He claimed that a letter had been received at his family home summonsing him to the local police station. The Tribunal requested that he provide a copy of that summons but it was not produced. The Tribunal also found it was implausible that BVV16 would return to Bangladesh from Malaysia in 2012 (after having spent six years there) knowing that there were serious charges outstanding against him and that he had not responded to a court summons. It found his explanation in relation to this implausible.

9    The Tribunal also found that the fact that the appellant was able to travel from Bangladesh to Malaysia and back again and that he had been able to obtain a travel document in his own name indicated that he was not of adverse interest to the authorities in Bangladesh.

10    It also found it to be implausible that he was attacked by seven or eight men, one of whom was armed with a knife, but that he was able to escape them. His evidence about the alleged event and the alleged injury he sustained were implausible and inconsistent. These matters were put to him under s 424AA and the Tribunal found his responses unconvincing.

11    The Tribunal also found that there was not a real chance that he would suffer serious harm if he returned from Australia on the basis that returnees to Bangladesh are regarded as being wealthy.

12    As mentioned, the Tribunal concluded BVV16 was not a witness of truth and had fabricated his material claims.

Application to the FCC

13    BVV16 applied for a Constitutional writ directed to the Tribunal from the FCC. He advanced five grounds. Those grounds alleged the Tribunal had failed to detect errors in the decision of the delegate. That, of course, was not the obligation of the Tribunal which was to conduct a hearing de novo on the material before it and to reach the correct and preferable decision. Despite this error in the Notice of Appeal the learned primary judge regarded the grounds as being complaints about the conclusions which the Tribunal had reached.

14    There is no need to consider at length the primary judge’s reasons at this point.

Appeal to this Court

15    BVV16 has advanced two grounds of appeal to this Court. They are, in substance, the same as the first two grounds advanced below:

1.    The Administrative Appeals Tribunal officer erred in law to come to a decision dismissing my application not finding that the Department of Immigration and Border Protection did not consider that I was a victim of persecution for my political belief as an activist of Bangladesh Jamal E lslami (JI) Party prior to departure from Bangladesh.

2.    The Honourable Administrative Appeals Tribunal officer did not find that there was lack of procedural fairness in the decision of the Department of Immigration and Border Protection to consider that I was physically abused for my political belief and my life was at risk which forced me to leave Bangladesh for safety of my life. I was not accepted by Tribunal as a credible witness and refuse my application.

16    The Minister submits that in the absence of any meaningful particulars indicating the existence of any jurisdictional errors, the Court ought to regard these grounds as being an attempt to engage in impermissible merits review of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 [31] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. There is much force in the Minister’s submissions in this respect and, considered strictly, the grounds do appear to seek merits review of the original findings. However, similar grounds were advanced before the learned primary judge who, within the bounds of fairness, read them favourably to the appellant. The same should occur on this appeal.

Ground 1

17    In relation to ground one the learned primary judge correctly held that, if the complaint is that the Tribunal failed to consider the aspect of BVV16’s claim that he feared persecution because of his political belief as an activist of JI, it was a contention that could not be sustained. As is apparent from its reasoning, it considered that claim in some detail. Indeed it analysed carefully the evidence before it and considered the various inconsistencies which arose. In undertaking that process the learned primary judge noted the Tribunal detailed its concerns about implausibilities in the appellant’s evidence relating to his claimed involvement with JI. The learned primary judge also noted that the Tribunal raised its concerns with the appellant and offered him an opportunity to respond to those concerns both during the hearing and after it. Her Honour concluded the Tribunal had understood and had regard to the claim being advanced by the applicant in this respect and had considered it in detail. It could not be said that the Tribunal made any error in this regard and consequently the claim was not made out. There is much to commend in her Honour’s reasons where a careful analysis of the Tribunal’s reasoning was assayed.

18    BVV16 has not disclosed any error by the Tribunal in the manner in which it dealt with this claim. More importantly, he has not disclosed any error on the part of the learned primary judge in the consideration of the issues which were considered on the application for review. It follows that no valid ground of appeal has been established in relation to the issue identified in Ground 1 of the Notice of Appeal.

Ground 2

19    Ground two appears to be a complaint of a lack of procedural fairness in the hearing before the Tribunal. The gravamen of the allegation is the failure of the Department or Tribunal to accept that the appellant was physically abused for his political beliefs, that his life was at risk and the fear generated by that risk caused him to leave Bangladesh.

20    The learned primary judge correctly identified that the Tribunal did consider BVV16’s claim that he was physically abused for his political beliefs and he was forced to leave Bangladesh because he feared his life was a risk. The difficulty for the appellant was that the Tribunal had determined that he had fabricated his claims and that he was an unreliable witness. That conclusion, which the Tribunal was entitled to make, was fatal to the appellant’s claims. In considering the appellant’s submissions the learned judge properly observed that credibility findings are not immune from review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496: however, on the material before the Court there was nothing to support a contention of a lack of procedural fairness in the processes of the Tribunal under Pt 7 of the Act or otherwise. The learned primary judge observed that the reasons of the Tribunal recorded that on a number of occasions it raised with the appellant its concern with the evidence that had been provided by him and that it offered him an opportunity under s 424AA of the Act to respond to its concerns. The reasons also record his responses to the Tribunal’s queries.

21    In his written submissions BVV16 submitted that, “The tribunal imposed its own reasoning without giving an opportunity for me to comment and in doing that denied procedural fairness in my application.” No particulars of that allegation were given in the written submissions and the appellant was not able to identify any during the course of the hearing. It follows that BVV16 has not identified any information which was subject to the obligation in s 424A(1) of the Act and in respect of which the Tribunal did not comply by providing particulars of it to him.

22    The learned primary judge also concluded that it had not been established that the Tribunal failed to meet its obligation to provide him with a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision as required under s 425 of the Act. The appellant has not adduced any evidence which would suggest to the contrary. The only evidence before the primary judge, and indeed on appeal, is in the Court Book and in the Tribunal’s reasons. Nothing there supports the suggestion that any lack of procedural fairness occurred. There was no transcript of the Tribunal hearing which might support any claim made. The learned primary judge found that it had not been established that the Tribunal failed to raise any dispositive issues with the appellant and her Honour’s conclusion in this respect has not been shown to be in error.

23    The learned primary judge found that in the case before him it had not been established that the Tribunal reached a finding without any logical or probative basis or that there was no evidence of intelligible justification for its finding in relation to credibility. This seemed to be an aspect of ground two which was in addition to the lack of procedural fairness ground. In the result the learned primary judge concluded there was no merit in that ground either.

24    BVV16 has not established any error on the part of the learned primary judge in relation to this ground either. The learned primary judge’s observations as to the processes of the Tribunal were entirely accurate on the material before the Court. Nothing which was advanced by BVV16 before this Court in any way undermines the determination of the learned primary judge.

25    In the course of the hearing the appellant seemed to suggest that he was not accorded a fair hearing before the Tribunal. Although he generally based this on not being believed, he also suggested that the hearing was not fairly conducted. This proposed new ground fails for many reasons. First, it was not raised below and no reason has been shown as to why it ought to be raised for the first time on appeal. Secondly, to the extent to which the appellant asserted from the Bar Table that he was only allowed to answer “yes” or “no” to questions put to him by the Tribunal, there is an absence of evidence in respect of that matter. The transcript of the hearing was not tendered and the reasons of the Tribunal record his evidence in a number of respects and shows it was obviously more fulsome than he claims. Thirdly, he was represented before the Tribunal by a solicitor and migration agent and it is most unlikely that he would not have been given the opportunity to orally advance whatever answer he desired to put to the Tribunal’s questions. Fourthly, the appellant filed pre-hearing and post-hearing submissions which were prepared by his solicitors and provided detailed arguments in support of his case. Fifthly, on a number of occasions the Tribunal recognised its obligation to afford the appellant an opportunity under s 434AA of the Act to respond to matters of concern arising from the evidence and his substantive answers are recorded. Those answers are not limited to “yes” or “no”. Sixthly, the hearing before the Tribunal lasted for more than three and a half hours and it is not conceivable that, in that time, he was not able to provide whatever oral evidence he wished. It is follows that there is nothing before this Court which would suggest that the natural justice requirements of the hearing before the Tribunal were not afforded. The primary judge found that there was nothing to suggest that the appellant was not given a meaningful opportunity to give evidence and present arguments relating to the issues of his application. No error has been demonstrated in relation to that conclusion.

26    The appellant also raised in his submissions that his ability to give responses to the Tribunal’s questions was impaired because of the trauma which he had suffered. That argument was not advanced to the primary judge and no reason has been given as to why it should be permitted to be advanced on appeal. Importantly, the appellant was represented by solicitors before the Tribunal and if he was suffering from such a disability, it is probable that it would have been raised by them. It is also relevant, as submitted by the Minister, that there is no evidence that he was suffering from any disability. No report from any medical practitioner or psychologist was produced. All that exists is an assertion in the written submissions. It follows that there is nothing in this submission which would alter the above consideration.

Conclusion

27    It follows that BVV16 has failed to demonstrate any appealable error in the Court below. There is no merit in either ground of appeal. It follows that the appeal should be dismissed.

28    BVV16 must pay the first respondent’s costs of the appeal.

Associate:    

Dated:    15 February 2019