FEDERAL COURT OF AUSTRALIA

ESU17 v Minister for Home Affairs [2019] FCA 300

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file a notice of appeal is dismissed.

2.    The applicant 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

(DELIVERED EX TEMPORE AND REVISED)

RANGIAH J:

1    This is an application for an extension of time to appeal from a judgment of the Federal Circuit Court of Australia delivered on 6 August 2018. The primary judge dismissed the applicant’s application for review of a decision of the Immigration Assessment Authority (the Authority) affirming a decision of a delegate of the first respondent to refuse the applicant a Safe Haven Enterprise Visa.

2    The applicant was required, under r 36.03 of the Federal Court Rules 2011 (Cth), to file a notice of appeal within 21 days after the date of the judgment: that is, by 28 August 2018. The application for an extension of time was filed on 31 August 2018, three days late. The applicant’s explanation for the delay is that he had attempted to file a notice of appeal on 27 August 2018 but the notice was rejected by the registry as it had been filed after 4.30 pm. The Minister does not assert any prejudice as a result of the delay. In these circumstances, the outcome of the application turns upon the applicant’s prospects of success in the proposed appeal.

3    The applicant’s draft notice of appeal contains the following ground:

The Second Respondent erred, amounting to jurisdictional error, by engaging in irrational, illogical and procedurally unfair reasoning.

Particulars:

The Applicant claimed to have been the victim of extortion from the Awami League, on account of his political opinion.

In issue before the delegate was when the Applicant had resided in Malaysia and whether he had in fact been resident in Bangladesh when he claimed he had been subjected to extortion demands and attacked and hospitalized (both in February 2012)

The Second Respondent found that the Applicant’s evidence was that he had stayed in Malaysia, at [CB134 para 28] “at least up until early 2012”.

This followed an earlier stating of his evidence as having been (CB 133 para 24), “He then stated he started working in Malaysia at the end of 2009 for a while; however, he returned to Bangladesh in 2011 after his visa was cancelled. The applicant then said he returned to Bangladesh early 2012”.

It was not an accurate summation of the applicant’s evidence that he had stayed in Malaysia “at least” until early 2012, nor that his final evidence had been that he had returned in early 2012.

The Applicant’s final evidence had been that he had returned to Bangladesh at, “the end of 2011”. This was noted by the delegate who recorded at CB112, “Nonetheless he was inconsistent with when he returned to Bangladesh, first stating 2011, and then changing to the beginning of 2012 and finally the end of 2011”.

The erroneous finding that the Applicant had admitted staying in Malaysia “at least” until early 2012 was used as the key basis for the rejection of the extortion claim.

The Second Respondent finding (my emphasis), “whilst I acknowledge that the applicant had been consistent in his claim that the AL demanded money (arrival interview, PV application and PV interview), given the applicant admitted working in Malaysia from 2009 and at least up until early 2012, I am not satisfied that he has been subject to any demands for money from the AL”.

4    The applicant arrived in Australia on 19 August 2013. He claimed to fear harm in Bangladesh on the basis of his political opinion. He claimed to have been threatened and verbally abused by members of the Awami League (AL) from 2009 because he was a supporter of the Bangladesh Nationalist Party (BNP) and because his uncle was a leader of the BNP. He alleged that in February 2012, the AL demanded money from him, but he refused to pay and was threatened. He claimed that on 20 February 2012, the AL attacked and tortured him and that he was admitted to hospital because of his injuries. He claimed that in July 2012, the AL ransacked his shop and set it on fire. He decided to leave Bangladesh, eventually leaving in May 2013.

5    The Authority expressed a number of concerns about the applicant’s credibility:

20.    Whilst I acknowledge the applicant was generally consistent in recalling events as provided in his claims I find a number of matters worrying. Firstly, the applicant’s family’s claimed association with the BNP has increased significantly from that provided in his initial claims where he made no mention of his own membership with the BNP, his brother A being a General Secretary of the union and his other brother R being a youth wing member of the Juba Dal and union President and his mother’s union membership of the BNP. This will be discussed further below. I also find it unusual that nothing of significance happened to the applicant until 2012 when this was four years after his uncle had been voted out and his power or association with the BNP would have diminished significantly during that time. I also find it unpersuasive that the applicant would have gone to such lengths to hide in India and other cities but then return to his village and hide periodically with his relatives. The applicant seemed to provide this explanation only after there was an unexplained period of time to account for. If he was really of interest to the AL in his village or if he really feared harm from them I am surprised he returned at all to his village. However, as discussed below, there are other matters which cast further doubt in my mind.

6    The Authority also referred to discrepancies in the applicant’s evidence before the Minister’s delegate that had been revealed by reference to photographs he had posted on his Facebook account:

22.    The delegate reminded the applicant at the beginning of his interview he had said he had travelled through Indonesia on his way to Australia and apart from that he had only been to India other than Bangladesh. In response the applicant then admitted to passing through Malaysia and staying two to three days en route to Australia. The applicant was presented with photos from his Facebook account. The first photo was posted on 22 July 2013 and has digitally imprinted in red ‘07-Feb-13’. The applicant is wearing a lime green polo shirt with a work ID lanyard around his neck and is pictured with four Asian women not of Bangladeshi appearance wearing identical polo shirts in a work environment.

23.    The second photo is on his brother’s Facebook account and is a photo of the applicant in the same green shirt embossed with a company logo in the same work environment with other colleagues in the background similarly dressed. The photo’s posting date is 9 December 2010. The third photo is again of the applicant on his brother’s account with five other colleagues in his same work shirt. This same photo is also posted on the applicant’s account but on 10 December 2011.

24.    The delegate put to the applicant that these photos did not appear to be taken in Bangladesh or of a shop which only employed one person and that the photos suggested the applicant was living and working in Malaysia since 2010. The applicant admitted they were photos of his workplace in Malaysia, He then stated he started working in Malaysia at the end of 2009 for a while; however, he returned to Bangladesh in 2011 after his visa was cancelled. The applicant then said he returned to Bangladesh early 2012. He initially went to Malaysia on his own passport but returned on a travel pass as his company held his passport and he left Bangladesh illegally in 2013 via Chittagong. The applicant also claimed that some of the photos had been photo shopped and his brother had made his Facebook account and uploaded the photos. The applicant then stated he had his shop in Bangladesh and his staff ran it when he was not present. The fourth photo is from the applicant’s account posted on 30 June 2013 and is of six men including the applicant and .his brother A in casual clothing with small backpacks. He claimed that on his way to Australia he had passed through Malaysia for a day and night and he met his brother.

7    The Authority went on to reach the following conclusions concerning the applicant’s credibility:

[28]    In analysis of the above information, I find the applicant not to be credible. I am of the view the applicant has fabricated his claims with regards to him being a BNP member or supporter, of being harassed by the AL since 2009, of being attacked and hospitalised In February 2012 and to having owned a shop which was burnt down by the AL in July 2012. Whilst I acknowledge the applicant has been consistent in his claim that the AL demanded money (arrival interview, PV application and PV Interview), given the applicant admitted to working in Malaysia from 2009 and at least up until early 2012, I am not satisfied that he has been subject to any demands for money from the AL…

(Footnotes removed, underlining added.)

8    The Authority was not satisfied that the applicant faced a real chance of harm on the basis of his political opinion, or imputed political opinion. It found that he did not meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). It also rejected his claim for complementary protection under s 36(2)(aa) of the Act.

9    Before the primary judge, the applicant raised a similar ground to the ground proposed to be relied upon in his appeal to this Court. The ground was concerned with the applicant’s claim that AL supporters demanded money from him and threatened him in February 2012, and the Authority’s finding that:

Given the applicant admitted to working in Malaysia from 2009 and up to at least early 2012, I am not satisfied that he has been subject to any demands for money from the AL.

10    The applicant submitted that the Authority was in error in finding that the applicant admitted to working in Malaysia until early 2012. The applicant submitted before the primary judge that the reason why the Authority rejected his claim of extortion was that the extortion was said to have occurred in Bangladesh in February 2012, whereas the Authority mistakenly thought that the applicant had admitted to being away from Bangladesh until early 2012. However, the primary judge considered that the Authority was not satisfied of the applicant’s claims for a number of reasons. It found that he had fabricated his claims of being a BNP supporter and having been harassed by the AL since 2009. It also found that the applicant had been dishonest in concealing the fact that he had been working in Malaysia from 2009. His Honour found that the admission to having worked in Malaysia until early 2012 was an “extra reason to reject the claim”.

11    The applicant submitted that the Authority could have come to the view that, while the remainder of his evidence was not credible, his evidence of the extortion was credible and could have resulted in a finding in favour of the applicant on that basis, if not for the error. However, the primary judge found that this was not a conclusion that was open on the Authority’s findings read as a whole.

12    The applicant contends that the primary judge erred by failing to apply the judgment in SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (2013) FCA 1093. In that case, Logan J said:

34    As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

35    One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational…

13    There are two issues that must be considered in this application. The first is whether the Authority made any error of fact in the passage impugned by the applicant. The second is whether any such error can be described as jurisdictional error.

14    I accept that the Authority was in error when it found that the applicant had admitted to working in Malaysia until at least up to early 2012. Before the delegate, the applicant’s evidence on this issue vacillated. At first, he maintained that he had never resided in any country other than Bangladesh, India and Australia. When confronted with Facebook photos showing him in Malaysia, he eventually admitted that he had worked in Malaysia from 2009. He claimed to have returned to Bangladesh in 2011. He then changed the date of his return to the beginning of 2012. He then changed the date back to 2011. The applicant was shown photographs of him apparently taken in Malaysia in 2013 and asked by the delegate why that would be so if he had returned to Bangladesh in 2011 or 2012. The applicant provided an answer which the delegate found to be inadequate and unpersuasive.

15    The Authority at para [24] of its decision record correctly stated that the applicant had told the delegate that he returned to Bangladesh in 2011 and later said he returned in early 2012. The Authority failed to notice that the applicant had also told the delegate, as his final version, that he had returned to Bangladesh in 2011.

16    That failure led the Authority to say at para [28] of the decision record that the applicant had admitted to working in Malaysia at least until early 2012. While that statement may have been literally true, it was an error because he had withdrawn that admission and changed his admission as to the date of return to 2011. Therefore, it may be accepted that the Authority made an error of fact.

17    However, an error of fact is not without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53]. In SZRHL, Logan J did not articulate any contrary proposition. His Honour considered that in the circumstances of that case, the factual error resulted in the Tribunal’s findings of credibility, and the decision itself, being illogical or irrational.

18    The position is different in this case. The Authority was mistaken about the precise nature of an admission that the applicant had made. Even so, there were a number of independent bases for the Authority’s finding that the applicant’s evidence as a whole was not credible. In particular, in light of the applicant’s Facebook photographs which showed that he was in Malaysia in 2013, the Authority found at para [28] that he had not returned to Bangladesh at all. Therefore, whether the applicant had admitted that he returned to Bangladesh in 2011 or 2012 was ultimately irrelevant. The evidence accepted by the Authority was that the applicant was not in Bangladesh at all in February 2012 when the alleged extortion attempt took place.

19    Accordingly, the error did not affect the Authority’s finding that the applicant had not been subject to any demands for money from the AL. The Authority’s factual error did not make its findings on credibility or its decision illogical or irrational. For that reason, there was no jurisdictional error. Further, the error was not material to the outcome, providing another reason why the error was not jurisdictional: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [30]–[31], [72] and [79].

20    For these reasons, the application for an extension of time within which to appeal does not have any reasonable prospect of success. The application must be dismissed with costs.

Associate:    

Dated:    8 March 2019