FEDERAL COURT OF AUSTRALIA

BLS16 v Minister for Immigration and Border Protection [2019] FCA 192

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The applicant must pay the first respondent’s costs of the application.

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 application before the Court is made pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (the FCRs) for an order extending the time in which the applicant might appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 31 August 2018. By that decision the FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 17 May 2016. The Tribunal had affirmed the decision by a delegate of the Minister for Immigration and Border Protection (the delegate) not to grant the applicant a Protection (Class XA) Visa.

2    Pursuant to r 36.03(a)(i) of the FCRs any Notice of Appeal from a decision of the FCC had to be filed within 21 days after the date on which the judgment was pronounced. Here no Notice of Appeal was filed within time and the application to extend time was filed on 27 September 2018, being six days after the expiry of the time limited for appeal.

Background facts

3    The applicant is a citizen of Bangladesh. On 21 April 2014, he arrived in Australia using his Bangladeshi passport and on a one month Business Visitor (Class FA) (Subclass 600) Visa which had been issued by the Australian High Commission in Bangladesh.

4    It is to be observed that the applicant is a man of some intelligence, having graduated with the degree of Bachelor of Science in 2006 from the University of Dhaka and, in 2008, with the degree of Master of Science from the same university. Until shortly prior to leaving for Australia had had been employed as a quality assurance manager in a garment business in Dhaka.

5    Despite having applied for the protection visa in May 2014, the applicant failed to attend at an interview with the delegate and, accordingly, the delegate refused his application on the papers on 10 December 2014.

6    The applicant then sought review of the delegate’s decision from the Refugee Review Tribunal (now the Administrative Appeals Tribunal) on 22 December 2014. The Tribunal conducted a hearing on 4 May 2016 at which the applicant appeared to provide evidence and advance arguments in support of his application. The Tribunal affirmed the decision of the delegate on 17 May 2016.

The decision of the Tribunal

7    In the context of the proposed grounds of appeal identified in the application to extend time, it is not necessary to consider in detail the Tribunal’s reasoning. A brief overview is sufficient.

8    It is noted that the applicant made several claims to the Tribunal as to why he was entitled to protection. First, he claimed he was involved in politics with the Bangladesh Nationalist Party (BNP) during his student life and while he was working. He claimed that in the period preceding the 5 January 2014 general elections in Bangladesh, he played a leading role with the BNP in advocating for proper elections and was engaged in protests against the Awami League. He said that, in late 2013, during a protest he was attacked by police and that resulted in an injury to him requiring medical attention.

9    He also claimed that he was targeted by agents of the Awami League at his workplace and at his home from November 2012 to January 2014, because those members of the Awami League wanted the company for which he worked to give them garments from its business. He said that two of his friends involved in political affairs with the BNP were victims of silent killings. He also claimed that after the election on 5 January 2014, he was attacked by agents of the Awami League who tried to extort money from him. He says that he sought police protection from assaults and threats but he was unsuccessful. He claimed that he feared that he would be kidnapped and killed or required to pay money to save his life. He said that terrorists are protected by the Awami League and they will harm him. He also said the police will not offer him protection should he return to Bangladesh and he is unable to relocate from his original residence there as he will easily be tracked down.

10    The Tribunal’s determination to affirm the delegate’s decision is primarily based upon its conclusion that the applicant lacked credibility and that, because his evidence was crucial to his claims, his claims also lacked credibility. The lack of credibility arose as a result of his inconsistent evidence in relation to the harm he claimed to have experienced from the Awami League, his purported willingness to continue to be politically active despite the alleged threats, his lack of enquiry as to his entitlement to remain in India at a time when he claims he perceived his life was at risk in Bangladesh, his claimed lack of political discussion with his father and the lack of consistency between his original claims for protection and the claims he made at the Tribunal. The Tribunal considered the cumulative effect of his lack of credibility and inconsistent statements and determined that he was not a witness of truth such that it wholly rejected his account of the events on which he relied. It considered a number of pieces of evidence which were provided by the applicant but they did not overcome the Tribunal’s concerns about his lack of credibility. As a result it did not give those documents evidentiary weight.

11    Consequently, the Tribunal determined there was no credible evidence on which it could rely to be satisfied as to the reasons why the applicant left Bangladesh to come to Australia and that there was no credible evidence as to why he did not wish to return there. Necessarily, it concluded he did not have a well-founded fear of persecution and nor was there a real risk that he would suffer significant harm if he were returned.

Proceedings before the FCC

12    As mentioned, the applicant sought judicial review of the Tribunal’s decision on 15 June 2016. In his application he advanced six grounds of review. The learned primary judge determined that none gave rise to a jurisdictional error. Only some of the grounds need consideration in these reasons.

13    Ground one of the application concerned an allegation that the applicant had been harassed by repeated questioning of him by the Tribunal member at the hearing. As the learned primary judge observed, there was no evidence to support this ground. His Honour particularly noted that at a Directions Hearing before the FCC on 8 July 2016, he informed the applicant that he carried the onus of establishing what occurred before the Tribunal and that he needed to obtain a copy of the transcript. The applicant asserted that he had already acquired that material. Notwithstanding, no transcript of the Tribunal was tendered to the FCC at the hearing of the application and there was no evidence of what questions were asked of the applicant by the Tribunal member or what were the topics of those questions.

14    The learned primary judge also identified that it would have been reasonably necessary for the Tribunal member to question the applicant extensively. That is because he did not appear at the Protection Interview before the delegate such that there was no recording of the claims which he made. The primary judge also observed that the Tribunal’s proceeding were inquisitorial in nature and it was empowered under s 424 of the Migration Act 1958 (Cth) (the Act) to “get any information that it considers relevant.” Where credibility is an issue, the Tribunal will necessarily have to test the evidence presented and often do that vigorously to ensure that the person affected by the decision will be accorded procedural fairness by being plainly confronted with matters which bear adversely on their credit: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at 435. As his Honour identified, there was no evidence that the Tribunal overstepped its inquisitorial role and engaged in hostile or dismissive questioning or that the applicant was overborne or intimidated by the Tribunal member. His Honour found that there was also no evidence that the applicant was not given a meaningful opportunity to participate in the hearing.

15    The primary judge also noted that the applicant appeared before the Tribunal with an interpreter which he made use of as and when he saw fit. It was also observed that, subsequent to receiving the decision of the Tribunal, the applicant sent an email to it on 14 June 2016 in which he indicated that he had been nervous during the hearing but he made no complaint that he was not able to participate or that he had been harassed. Consequently, the primary judge dismissed any suggestion that the Tribunal’s decision was vitiated by bias.

16    The remaining grounds of the application to the FCC need not be considered save to observe that the learned primary judge rejected the suggestion that there was anything legally unreasonable in the Tribunal being concerned with the failure of the applicant to make relevant claims on his visa application form, only to make them subsequently. His Honour also found there to be no evidence that the Tribunal prevented the applicant from calling any evidence he desired.

Application for an extension of time

17    It is well established that in exercising the discretion in r 35.14 of the FCRs to extend the time in which a party may appeal, the Court ought usually have regard to a number of central factors. They are:

(a)    Whether the Court is satisfied that it is proper to grant the extension noting that the prescribed period is not to be ignored. In the ordinary course this will require the applicant providing a reasonable explanation for the failure to lodge the appeal within the time provided for in the FCRs as well as an explanation for any delay in filing any application to extend time;

(b)    Any prejudice to the respondents which might arise consequent upon granting an extension of time. That said, it is now well accepted that the mere absence of prejudice is not sufficient to justify the granting of an extension; and

(c)    Whether or not there are sufficient merits in the proposed grounds of appeal which would warrant the conclusion that it is in the interests of justice to grant the extension of time. Of all of the considerations, it is this which is the most significant as it would generally offend the interests of justice to shut out an appellant who had a meritorious argument that their appeal would succeed.

18    Quite properly, the Minister acknowledged that he would suffer no prejudice by reason of the grant of an extension of time. However, as mentioned, that of itself is not sufficient to justify the granting of that extension: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; SZQCZ v Minister for Immigration & Citizenship [2012] FCA 91, [15]-[19].

The explanation for the delay

19    It is to be kept in mind that the delay in this case is relatively minor and it can be said as a general rule that, where the delay is minimal, a Court may be convinced of the existence of a reasonable explanation more readily than if the delay was lengthy. Here, the applicant has asserted that he was unaware that he was required to attend Court to receive judgment and he thought he would receive it through the post. He says that he first became aware of the decision on 20 September 2018, when it was sent to him by the solicitors for the Minister. Although he was not cross-examined on his affidavit, the Minister nevertheless submitted the explanation was not satisfactory. He submitted that the applicant was on notice that the judgment would be handed down on 31 August 2018 but he failed to take any steps to ascertain the result. Generally, it can be accepted that ignorance of the time limits or of the Court processes is not, of itself, to be regarded as a satisfactory explanation for a delay: SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17, [38].

20    Whilst the Minister submits that the explanation for the delay is inadequate, he nevertheless recognised in his submissions that the strength of the merits of the proposed grounds of appeal is frequently determinative of whether any extension will be granted. That said, he submits, and with some force, that there are no merits in the proposed grounds.

The proposed grounds of appeal in the draft notice

21    There are five grounds of appeal set out in the Draft Notice of Appeal. They are:

1.    The reason was presented as evidence about my political involvement in Bangladesh was only based on the suspicion.

2.    At the time of hearing, I mixed up of timing in between the incidents. Based on which, the Member of AAT misdirected the decision.

3.    The Member mentioned in decision letter that there is no one in Bangladesh seeks to harm me where as I had stated the incidents of my harm and injury and founded well the fear from Awami League people. But Tribunal did not take into account of Country Information while taking the decision.

4.    I strongly believe that the Member did not go through the merit of the case and he was pre-decided not to approve the file and mentioned some common comments in decision letter.

5.    I was also victim of not receiving the right of hearing in the Immigration. I received the decision letter from Immigration along with Invitation letter of hearing.

(errors in original)

Ground 1

22    As articulated Ground 1 appears to be somewhat confused and devoid of any discernible allegation of legal error. However, in the submissions filed by the applicant the claim appears to be slightly more developed. In essence, it appears to be an allegation that the Tribunal failed to consider the applicant’s claim that he had an imputed political opinion because he was employed by a BNP supporter.

23    The first difficulty with this ground is that it was not agitated before the primary judge. The applicant would require leave to agitate this ground on appeal. The principles in relation to exercising a discretion to give leave to a party to agitate new grounds of appeal were identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598–599 at [46]–[48] where the Full Court 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.

24    In this case there is no explanation as to why the ground now sought to be agitated was not advanced to the Federal Circuit Court. That is a significant hurdle for the applicant on this application, though it must be recognised that the applicant was not represented before the FCC.

25    The second difficulty is that no such claim was expressly agitated before the Tribunal. The claim there was advanced on the basis that the applicant was a leader in the BNP. However, such claims lacked credibility. In particular, the Tribunal disbelieved his assertion he suffered harm from the Awami League in the form of threats, demands to pay money or provide goods, being assaulted, being abducted and having to go into hiding in fear of that group. Now the applicant seeks to assert that the Tribunal erred in not considering a claim which was not expressly put to it.

26    In the Full Court decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)), the Court identified the principles to be applied when determining what are an applicant’s claims, or integers of claims, which a decision maker is obliged to consider (at [58]-[60]). The Court said:

(a)    The Tribunal’s function is to respond to the case advanced; the Tribunal is not obliged to consider claims that have not been made.

(b)    The Tribunal must deal with the case raised by the material and evidence before it. The question is whether the case put before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with.

(c)    The Tribunal is not only required to deal with claims expressly articulated by an applicant, and, at the same time, is also not required to consider a case not expressly made or one that does not clearly arise on the materials before the Tribunal.

27    Subsequently, Allsop J (as he was then) in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 cited NABE (No 2) for the proposition that:

A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

28    Here, it is difficult to see how the claim that the applicant fears persecution from some imputed political opinion arises on the material before the Tribunal. There was no suggestion that employees of BNP members were imputed with the political opinion of their employers and that they were persecuted for that imputed opinion. Such a suggestion did not arise “tolerably clearly” on the material before the Tribunal.

29    The Minister submitted that the Tribunal considered the applicant’s claims that his employer was a member of the BNP and was also targeted by the Awami League. That was not the same as a claim that the applicant would be targeted because he was employed by a member of the BNP. The Tribunal did consider the applicant’s evidence that his employer was targeted by the Awami League, but found that the applicant’s evidence lacked credibility and so disbelieved that the events occurred. That being so, there was no credible evidence that the applicant’s employer was attacked by the Awami League as claimed. Had there been a real ground raised to the effect that the applicant had a well-founded fear of persecution because his employer was a member of the BNP, there was an absence of any evidence which would have supported it.

30    It follows that there is nothing in the first ground either as it appears in the Draft Notice of Appeal or as expanded in the submissions which would warrant an extension of time in which to appeal.

Ground 2

31    The second ground, as it appears in the Draft Notice of Appeal, appears to be equally incoherent. It seems to be an acknowledgement that the applicant misstated the sequence of events to the Tribunal. In the course of the hearing the applicant advised that he believes he may have misstated the dates on which the various events occurred and that may have been the result of him being nervous at the hearing and unrepresented. There is no doubt the Tribunal was concerned about the lack of consistency in the evidence which the applicant gave to it. As it is set out in the Tribunal’s reasons, his evidence did not vary in minor respects but changed dramatically in major respects. The acknowledgement in the Draft Notice of Appeal that his evidence was inconsistent is an affirmation, in part, of the Tribunal’s conclusions.

32    As articulated in the applicant’s Outline of Submissions the ground appears to be that the Tribunal failed to consider his evidence that he tried to make a complaint to the police or to the authorities but could not lodge it. The substance of the allegation that he made complaints to the police or to the authorities does not seem to be supported by evidence.

33    Again, the difficulty with this ground is that it was not agitated before the primary judge and no reason is proffered as to why that was the case. In any event, the Tribunal did consider the claim that the applicant’s employer approached the police for protection but that was refused.

34    It may be that in his submissions the applicant is referring to some other approach to some other authority, however, if there were such an approach there is no evidence of it before the Court and nor was there any evidence of it before the Tribunal.

35    Again there is insufficient merit in this ground to warrant the grant of an extension of time.

Ground 3

36    The first part of this ground appears to be a complaint that the applicant was not believed by the Tribunal. Whilst that is unfortunate for the applicant, no error in the process by which the Tribunal reached that conclusion has been demonstrated. Short of the existence of some jurisdictional error, this Court has no power to determine whether the Tribunal’s conclusion as to the applicant’s credibility was accurate.

37    The second part of this ground appears to be an assertion that the Tribunal did not take into account certain country information. However, the Tribunal is only required to take such information into account to the extent to which it is relevant. It is apparent from the face of the Tribunal’s reasons (at [6]) that the Tribunal considered the DFAT Country Report Bangladesh dated 20 October 2014 but concluded that its contents were not relevant to the grounds of review before the Tribunal. That conclusion has not been shown to be incorrect.

38    In the outline of submissions filed by the applicant it is claimed the Tribunal failed to consider, particularly under the Complementary Protection grounds, whether he would face a risk of significant harm and in particular psychological harm. However, here, the difficulty is that because the Tribunal did not believe the applicant and his account of the events on which is claims were based, there was no credible evidence that he has suffered harm in Bangladesh or that anyone there would seek to harm him. That finding of fact prevents any consideration of whether psychological harm would follow. Again there is nothing in this ground which would warrant an extension of time in which to appeal.

Ground 4

39    The fourth ground appears to raise an allegation of bias but the applicant’s submissions do not address this point. It was raised in a manner before the primary judge who identified that there was no evidence of bias at all. The bias alleged in the Draft Notice of Appeal seems to be different to that advanced before the primary judge, however, equally, there is nothing to suggest that the Tribunal member pre-determined the matter and did not consider the merits of the claims which were advanced. On the contrary, the Tribunal’s reasons show a detailed consideration of the claims advanced and the reasons why the applicant was disbelieved on his claims.

40    In the judgment below the primary judge observed that a finding of actual bias is a grave matter. He referred to the decision in Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 127. His Honour then referred to the decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] where it was said:

The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved.” Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

41    Here there is not a scintilla of evidence of bias. The allegation is not distinctly made and nor has it been clearly proved. It is a bare allegation. It seems to arise only because the applicant was disbelieved. That is, of itself, not a reason to conclude that bias exists.

42    In the course of the appeal it was suggested from the Bar Table by the applicant that the Tribunal member may have been presented with many false stories by persons from Bangladesh and disbelieved them, such that he did not believe the applicant’s narrative. There is no evidence to suggest the Tribunal member approached his task with other matters in mind. On the contrary, his reasons demonstrate that he turned his mind to the claims made by the applicant and the evidence which was advanced to support them. There is nothing to suggest that the Tribunal was influenced by the evidence in other cases.

43    The applicant has not demonstrated that the primary judge’s conclusion on bias was in error. It is apparent that his Honour’s conclusion on that topic was entirely correct.

44    Again there is no merit in this ground which would warrant the grant of an extension of time in which to appeal.

Ground 5

45    By this ground the applicant seems to allege that he did not receive a hearing before the delegate because he did not receive a letter inviting him to the hearing. As the Minister correctly submits, this Court does not have jurisdiction to review the decision of the delegate nor consider the processes which occurred in that part of the visa application process. It might also be mentioned that, as the hearing before the Tribunal was a hearing de novo, any denial of natural justice occurring at an earlier stage will have been overcome by the subsequent hearing on the merits.

Other matters

46    The applicant’s submissions contain myriad allegations of jurisdictional error. Other than those considered above, none contained substantive particulars of the allegations by reference to the facts of this case. He told the Court that the submissions were prepared by himself and his friends. Regardless of who prepared them, they were of a “boiler plate” variety and did not contain arguments relevant to the matter the subject of the application. In the absence of any particularity or explanation, the several assertions can be taken as a mere disagreement with the outcome at the Tribunal and that is not a justiciable matter.

Conclusion

47    It follows that the grounds in the Draft Notice of Appeal lack any sufficient merit which would warrant the granting of an extension of time in which the applicant might appeal. None of the grounds advanced, nor any of the general allegations in the written submissions, have any merit. As a consequence, the application for an extension of time is refused.

48    The applicant must pay the first respondent’s costs of the application.

Associate:

Dated:    22 February 2019