FEDERAL COURT OF AUSTRALIA

SZRBN v Minister for Immigration and Border Protection [2019] FCA 995

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

O’CALLAGHAN J:

1    The appellants appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (Federal Circuit Court), dismissing their applications for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the Minister, the first respondent, not to grant to the appellants Protection (Class XA) Visas (Protection Visas).

2    The appellants are citizens of Bangladesh. The second and third appellants did not make claims on their own behalf, but sought protection on the basis of being members of the same family unit as the first appellant. The second appellant is the spouse of the first appellant, and the third appellant is the dependent child of the first appellant. The reasons of the Tribunal affirming the decision of the delegate of the Minister not to grant the Protection Visas to the appellants were lengthy but, in light of the grounds of appeal sought to be raised by the appellants, it is only necessary to record parts of those reasons dealing with two questions.

3    The first question concerns the first appellant’s claim concerning his involvement with the Bangladesh National Party (BNP) prior to leaving Bangladesh for Italy in 1995. The second concerns his claim as to fear of being extorted were he to return to Bangladesh. At [37] of the Tribunal’s reasons, the Tribunal records what the applicant had said at the hearing on the question of extortion as follows:

The applicant also mentioned in the hearing that he may be targeted in Bangladesh because he will be returning from abroad and he will be presumed to have money. No evidence was provided that the family had been targeted on previous return visits to Bangladesh for this reason. Evidence was noted that the applicant and his wife had previously returned to Bangladesh with between €20,000 and €25,000.

4    The appellants had been living in Venice, in Italy, for many years after leaving Bangladesh until February 2011 when they left. The appellants’ claim with respect to extortion is dealt with by the Tribunal in its reasons at [103]-[104]. Those reasons are as follows:

103.    The applicant has made a claim that he fears being extorted on return to Bangladesh. Following the first hearing, the applicant’s advisor provided independent information which indicates that extortion does occur in Bangladesh, perpetrated by Awami League politicians, including directed towards businesses. The applicant told the Tribunal that he had never previously been extorted. The Tribunal reminded the applicant of prior evidence that he had returned to Bangladesh from Europe with €20,000 – €25,000. The Tribunal indicated that although it acknowledged that there was evidence that extortion occurs in Bangladesh, it was not inclined to consider that there was a real risk of this happening to the applicant given no past difficulties in this respect. The Tribunal also does not consider that the independent evidence would suggest that every Bangladeshi is at real risk of significant harm due to being extorted. The Tribunal does not consider there is evidence to establish any risk profile applicable to the applicant that would increase the risk to him. For example, the applicant is not a businessmen [sic]. To the extent that there is a claim that the applicant, having lived in a Western country, would cause him to be targeted, the applicant has not claimed that he was been [sic] previously targeted on such a basis, nor has any independent evidence been provided that would suggest that this regularly occurs.

104.    For these reasons, the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of being extorted, including on the basis that he has lived in a Western country.

5    The Tribunal dealt with the question of the first appellant’s membership of the BNP at [100]- [102] of its reasons, as follows:

100.    As indicated, the Tribunal accepts that the applicant had some degree of involvement in the BNP prior to leaving Bangladesh in 1995. Given the limited difficulties faced by the applicant as a result of that activity, as found by the Tribunal, and taking into account other credibility issues identified in relation to the applicant, the Tribunal is not satisfied that the applicant left Bangladesh in 1995 because of his fear of harm as a result of his political activities.

101.    The Tribunal noted to the applicant in the first Tribunal hearing as part of the current application that he has not been involved politically in 20 years. He has no intention of continuing political involvement. The Tribunal noted to the applicant independent evidence contained in this decision, including that provided by the applicant’s advisor, which indicated some risk of harm to those in Bangladesh currently involved in opposition political parties. However, the Tribunal noted that none of that information would suggest that an individual who had been involved many years previously, and was no longer politically involved, would be targeted for harm by the Awami League/government. The Tribunal invited the applicant to make reference to any such evidence if it were available. No relevant information was subsequently provided.

102.    On those grounds, the Tribunal is not satisfied on the evidence, including the independent evidence before it, that there is a real risk of the applicant facing significant harm based on his political activities from over 20 years ago.

6    In the Federal Circuit Court the appellants were represented by counsel. The appellants were not represented by counsel in this court. At the hearing this morning the first appellant appeared on his own behalf (and on behalf of the second and third appellants) with the assistance of an interpreter. I also entered into exchanges with the first appellant in English, although he conceded that he had difficulties understanding English in this context, which is readily to be appreciated. I should also say that the court appreciates the unerring courtesy shown by the first appellant this morning.

7    Before the Federal Circuit Court the appellants relied on a single ground of appeal. That ground of appeal was as follows:

The Tribunal erred in failing to consider a claim, arising clearly from the evidence, that upon return to Bangladesh, the applicant, being a returnee from a Western country, may be a target of convenience, and thus may be at risk of extortion in the future.

8    I asked the solicitor appearing for the Minister, Ms Strugnell, whether she had available to her a copy of the submissions filed by counsel on behalf of the appellants below. Understandably enough, those submissions, not being in the court book, were not readily available to her. Ms Strugnell told me, however, and I accept, that the learned primary judge adequately set out the appellants’ submissions at [27] of his reasons, which were as follows:

(a)    the applicant and his family, whilst living in Italy, visited Bangladesh for two months in 2004, for three weeks in 2007, and for six weeks in 2010 to 2011.

(b)    the country information cited in a second submission to the Tribunal dated from 2009 to 2015 which postdated the visits referred to.

(c)    that information, viewed sensibly, indicates that extortion is opportunistic, that the evidence of extortion suggests that it is directed at targets of convenience, that it is to people who have or are presumed to have money and cannot defend themselves, and,

(d)    the Tribunal’s finding that the applicant had not been extorted in the past assumed that the future would reflect the past.

9    The Minister’s submissions were recorded at [31] and [32] of the reasons of the primary judge, as follows:

31.    As has been set out in the detailed summary of relevant factual background above, the applicant’s claim with respect to the potential for him to be targeted for extortion in Bangladesh was not independent from his claims with respect to the political situation in Bangladesh and his past political involvement.

32.    The Tribunal is said to have both identified and dealt with the extortion claim, as put to it. It was open to the Tribunal to place weight on the absence of any past extortion experienced by the applicant, including in circumstances where he had returned to Bangladesh with a significant sum of money, in its forward looking assessment. It was also open for the Tribunal to place weight upon independent country information bearing on its assessment, and to have regard to the absence of any profile on the part of the applicant suggestive of an increased risk to him. Contrary to the application to the Court, the Tribunal is said to have expressly considered whether the applicant’s being a returnee from the West supported a finding that the applicant faced a real risk of extortion.

10    The learned primary judge dealt with the competing submissions on the single ground of appeal in [33]- [36] of the reasons, as follows:

33.    In my opinion, the Tribunal did not overlook any element or integer of the applicant’s claims. First, the Tribunal’s conclusion at [103] needs to be read in the context of how the claim was put, which is recited at [37], where the Tribunal stated:

The applicant also mentioned in the hearing that he may be targeted in Bangladesh because he will be returning from abroad and he will be presumed to have money. No evidence was provided that the family had been targeted on previous return visits to Bangladesh for this reason. Evidence was noted that the applicant and his wife had previously returned to Bangladesh with €20,000 -€25,000.

34.    The claim advanced was that the applicants were at real risk of significant harm from extortionists because they would be returning from abroad and would be presumed to have money. The evidence before the Tribunal established that one or other of the applicants had made visits to Bangladesh in 2004, 2007 and 2010-2011, albeit for limited periods, and no extortion attempt had been made. The Tribunal was entitled to have regard to the absence of past harm in those returns to Bangladesh.

35.    Secondly, while the Tribunal was presented with country information indicating that particular groups in Bangladesh might be at risk of being extorted (street traders, other businessmen or in some cases residents of a particular area), there was nothing to indicate that returnees as a class were at any particular risk.

36.    In my opinion, the Tribunal made a lawful assessment of the risk of harm facing the applicants on return to Bangladesh from extortionists and, in the absence of any evidence of past harm, and in the absence of any evidence supporting an assessment of the risk faced by the applicants as returnees, the conclusion reached by the Tribunal was open to it, on the material before it. Moreover, for the purposes of the present application, I am not persuaded that anything material was overlooked by the Tribunal in its assessment of the claim.

11    In my view, the decision of the primary judge on the single ground of appeal is clearly correct. The Tribunal, as the primary judge found, made a lawful assessment of the risk of harm facing the appellants on return to Bangladesh from extortionists and, in the absence of any evidence of past harm, and in the absence of any evidence supporting an assessment of the risk faced by the appellants as returnees, the conclusion reached by the Tribunal, it seems to me, as the primary judge found, was clearly open to it on the evidence before it. It follows that insofar as that ground of appeal is relied upon in this court, it fails.

12    The notice of appeal filed in this court raised a ground not relied upon below. That ground is as follows:

His Honour should have found that the Tribunal’s has failed to make a lawful assessment of the risk of harm facing by my family if we are to return back to Bangladesh. Our return to Bangladesh in 2004, 2007 and 2010 to 2011 are all for very brief period of time, where no one outside of our immediate family and friends know our presence in Bangladesh. If we are to return on a permanent basis, and outsiders know, then my family will be subject to risk of harm.

13    The appellants also rely upon grounds of appeal which are articulated in a document headed “Outline of Submission”, which the first appellant told me this morning he had prepared with the assistance of some friends. That document purports to seek to rely on 16 new or partially new “grounds”, as follows:

1.    Hon. Judge of the Federal Circuit Court failed to hold that the AAT made a jurisdictional error when it used same assessment threshold for the risk in second application lodged on 27 February 2013 as it used in first application for protection visa lodged on 18 February 2011.

2.    In the second application, the applicant’s representative noted that (AB 114) the applicant’s application for previous protection visa was assessed under the Refugee Convention where the assessment threshold was “serious harm”. Under the Complementary Protection Provisions, the applicant’s claims need to be assessed under the different thresholds of “Significant harm”.

3.    The applicant claims that Hon. Judge failed to hold that in making decision, the AAT misconstrued or mistook the facts about the current security situation of Bangladesh.

4.    On 22 November 2016, applicant submitted a very detailed information about security situations of Bangladesh and wrote “the primary applicant fears that he will face a real risk of significant harm including torture, degrading, inhuman and cruel treatment if he returns to Bangladesh for reasons (AB PP 303-321) of political opinion, holding and supporting the political ideologies of BNP.

5.    On 05 December 2016, applicant representative submitted NEWS REPORT and Statement of Extortion by Awami League Politicians in Bangladesh (AB PP 328-341.)

6.    The purpose of submission of details of Security Situations and Extortion to the Tribunal was to forward maximum information for the assessment to establish the facts situation that the applicant would face a significant harm if he returns to Bangladesh.

7.    In the Tribunal decision and the Federal Circuit Court’s decision, the issue of extortion was highlighted more than enough. Which is legally unreasonable.

8.    Extortion is one of the component of the fear, sufferings and harm. Applicant in his application, in the submission to the Tribunal and hearing mentioned, torture, degrading, inhuman and cruel treatment as significant harm. But the Tribunal and the Court spent more time to justify that the applicant was never extorted and he has not any fear to go back to Bangladesh.

9.    When the Tribunal asked him whatever he thought he would be subject to extortion if he returned to Bangladesh if he had been a BNP member. He replied that he does not know what is going to happen if he returns but what they are doing now is the result of past thing. (AB 102p8l) The applicant then stated that “it is just thought, it is just my personal opinion I am not saying that I would be targeted because of that.

10.    The applicant claims that the Tribunal mistook the facts. The applicant never said that it happened to them when they were in Bangladesh. He said it happened here in Bangladesh when they (Awami League supporters) believe some body coming from Western country and they have some money or brought money from overseas He said it might be happened to them. He said there is a possibility that they may be victim of extortion by the Awami League workers as it happened to many BNP supporters.

11.    Hon Court failed to hold that the applicant was denied Natural justice and Procedural Fairness when Tribunal took aggressive attitude and asked many irrelevant things to prove that all assertions about his claim is not true . Because of inconsistencies in statements given at first application’s Interview and second Application’s hearing. The applicant claims that the AAT was biased or closed minded when it asked irrelevant questions in second interview. The hearing was not judicial. The AAT did not act in a judicial manner. The decision was unreasonable.

12.    The applicant contends the Hon. Court failed to hold that the AAT denied the applicant procedural fairness on the above mentioned reasons.

13.    The adverse credibility finding by AAT of the decision record was affected by jurisdictional error as there was an insufficient logical or evidentiary connection between the Tribunal’s assessment of applicant’s credit and the material upon which it relied to make that assessment for Protection visa in accordance with the Complementary Protection Visa provisions

14.    There are many expositions of what is comprehended by proposition that an exercise of power, including an exercise of discretionary power. In Minister for Immigration & Citizenship V Li [2013] HCA 18 249 CLR 332 at [68] Hon Judge said “the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for the decision maker”

15.    In Minister for Immigration and Citizenship v SZRKT ( 2013) 212 FCR 99 Robertson J at [96] held that a failure to consider evidence can constitute a failure to consider relevant matter an amount to jurisdictional error when the material is central to the assessment of visa applicant’s claim

The applicant claims that the Federal Circuit Court failed to hold that the AAT ignored the relevant matter and made decision with closed mind without using correct threshold for assessment of applicant’s claim for the Protection visa under complementary Protection Provision. In the Full Court in Minister for Immigration and Border Protection v MZYTS explained at [68]: In SZJ.5S at [27] - [28] (a passage extracted by Robertson .J SZRKT at [96] the joint judgement of the Court recognised as proposition following from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of power”.

16.    The applicant claims that the Tribunal decision was affected by jurisdictional error with regard to the Complementary criterion by finding that [AB 389] the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequences of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm for anv of the reasons claimed ,or for any other reasons ... Therefore the applicant does not satisfy the criterion set out in s 36 (2(aa) for a protection visa.

14    As Ms Strugnell quite properly recognised, grounds 3, 4, 5, 6, 7, 8, 9 and 10 may be construed as related to the appellants’ claims concerning the BNP and extortion. In my view, however, assuming those grounds are sought to be a further articulation of the ground relied upon before the Federal Circuit Court, and which the appellants press here, they really do no more than argue with the merits of the decision below. The fact of the matter is that, as the primary judge found, the Tribunal did consider the claim to extortion, but it found that someone of the first appellant’s profile had no real chance of being subject to the type of extortion the subject of the claim.

15    It is also clear from the Tribunal’s reasons at [100]-[102], which I have set out earlier, that the Tribunal accepted that the first appellant had been a member of the BNP, but in circumstances where the membership, and his involvement, was a very long time ago that fact was unlikely to mean that there was a real chance that he would suffer harm as a result of it upon his return. For those reasons, accepting that grounds 3 through 10 may be the subject of this appeal, they have no merit.

16    Grounds 1 and 2 may be read to contend that the Tribunal was required, but failed, to assess the appellants’ claims against the complementary protection criterion, but it is plain from the Tribunal’s reasons at [16]-[17] that the Tribunal did consider the complementary protection criterion and assessed each of the appellants’ claims against it:

16.    On 28 August 2007 the applicant applied for an offshore subclass 134 (Skill Matching) visa. This was refused on 16 February 2009. The applicant arrived in Australia on 4 January 2011 on a Tourist visa. An application for a Protection visa was lodged by the applicants on 18 February 2011. This was refused on 13 April 2011. A review by the Refugee Review Tribunal affirmed the decision of the delegate. Appeals by the applicants to the Federal Magistrates Court and the Full Federal Court were unsuccessful. Requests for Ministerial Intervention were lodged in September 2012 under ss.417 and 48B of the Act. In relation to the s.48B request, it was determined as the guidelines not being met on 19 October 2012. The outcome of the s.417 request was that it was not considered on 23 January 2013.

17.    A further application for a Protection visa was lodged on 27 February 2013. That application was originally deemed as invalid but later accepted as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

17    The Tribunal found that there was not a real risk of significant harm to the appellant due to the Awami League as a result of his previous involvement in the BNP for reason of his political involvement prior to 1995, extortion because of general lawlessness or the security situation or for any other reason. See [101]-[107] of the Tribunal’s reasons, as follows:

101.    The Tribunal noted to the applicant in the first Tribunal hearing as part of the current application that he has not been involved politically in 20 years. He has no intention of continuing political involvement. The Tribunal noted to the applicant independent evidence contained in this decision, including that provided by the applicant’s advisor, which indicated some risk of harm to those in Bangladesh currently involved in opposition political parties. However, the Tribunal noted that none of that information would suggest that an individual who had been involved many years previously, and was no longer politically involved, would be targeted for harm by the Awami League/government. The Tribunal invited the applicant to make reference to any such evidence if it were available. No relevant information was subsequently provided.

102.    On those grounds, the Tribunal is not satisfied on the evidence, including the independent evidence before it, that there is a real risk of the applicant facing significant harm based on his political activities from over 20 years ago.

103.    The applicant has made a claim that he fears being extorted on return to Bangladesh. Following the first hearing, the applicant’s advisor provided independent information which indicates that extortion does occur in Bangladesh, perpetrated by Awami League politicians, including directed towards businesses. The applicant told the Tribunal that he had never previously been extorted. The Tribunal reminded the applicant of prior evidence that he had returned to Bangladesh from Europe with €20,000 – €25,000. The Tribunal indicated that although it acknowledged that there was evidence that extortion occurs in Bangladesh, it was not inclined to consider that there was a real risk of this happening to the applicant given no past difficulties in this respect. The Tribunal also does not consider that the independent evidence would suggest that every Bangladeshi is at real risk of significant harm due to being extorted. The Tribunal does not consider there is evidence to establish any risk profile applicable to the applicant that would increase the risk to him. For example, the applicant is not a businessmen [sic]. To the extent that there is a claim that the applicant, having lived in a Western country, would cause him to be targeted, the applicant has not claimed that he was been [sic] previously targeted on such a basis, nor has any independent evidence been provided that would suggest that this regularly occurs.

104.    For these reasons, the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of being extorted, including on the basis that he has lived in a Western country.

105.    The applicant has claimed that he faces a risk based on general lawlessness in Bangladesh. In the hearing, the Tribunal referred of the DFAT report mentioned above. It indicated that the report would indicate that a key risk factor for harm is based on political activity. It indicated, leaving aside the applicant’s claims as to harm based on past political activity, the Tribunal would not be inclined to consider that the DFAT report indicated that the general security situation in Bangladesh was such that every Bangladeshi citizen faced a real risk of significant harm.

106.    Leaving aside the claims based on political activity, the Tribunal· is not satisfied that the applicant faces a real risk of significant harm based on the general security situation in Bangladesh. The Tribunal is not satisfied that the applicant has any risk profile beyond that of an ordinary Bangladeshi citizen which would increase the risk of harm beyond that faced by the general population.

107.    In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh: there is a real risk that he will suffer significant harm for any of the reasons claimed, or for any other reasons.

18    For those reasons, there is no merit in grounds 1 and 2.

19    Grounds 11 and 12 involve assertions that the appellants were denied natural justice or procedural fairness in some unspecified fashion. In my view, there is nothing from the Tribunal’s reasons that would cause any fair minded observer to think that the Tribunal did not bring a fair and impartial mind to the making of the decision, let alone that it was biased or close minded, as ground 11 seeks to maintain. In the absence of the transcript of the hearing before the Tribunal (which was not available below or here), it is impossible to assess the claims in grounds 11 and 12 other than on the basis of the detailed reasons of the Tribunal, which, as I say, do not suggest that any of these allegations has merit.

20    Ground 13 concerns the finding of adverse credibility. In my view, this ground cannot succeed. The Tribunal made detailed and comprehensive findings between [17] and [96] about the credit of the evidence given by the first appellant and nothing in those findings could be said to be illogical or irrational. On the contrary, the Tribunal based its adverse credit findings on multiple significant and actual inconsistencies and deficiencies in many aspects of the claims made.

21    For example, the Tribunal found that the first and second appellants gave inconsistent evidence about what occurred in 2007 in relation to when the Awami League came to the house, the number of occasions they came to the house, and did not accept the appellants’ explanation in relation to those inconsistencies. See the Tribunal’s reasons at [59]-[63]:

59.    Firstly, there are significant inconsistencies between the evidence of the applicant and the second named applicant as to what occurred in 2007.

60.    In relation to the claimed harassment of the second named applicant by the Awami League asking as to the whereabouts of the applicant that occurred in 2007, the first Tribunal decision records the second named applicant giving evidence that the people associated with the Awami League came to the house on three or four occasions. The applicant, in contrast, said that they came on two occasions. The second named applicant said that they did not come in the morning. The applicant said that they came both in the morning and afternoon. The second named applicant stated that the last time they came was 10 to 15 days before she left Bangladesh. The applicant stated that there were no difficulties during the last one to.one and a half months the second named applicant was there.

61.    In the first Tribunal hearing with respect to the current application the applicant explained that the inconsistencies are due to the stress and confusion of the hearing and the ill health of his wife. In a written response provided following the hearing, it was indicated that communication between the applicant and his wife as to what happened occurred by telephone between Bangladesh and Italy and it was difficult to comprehend everything that· was being said. There are also general references to the applicant and the second named applicant suffering from mental anxiety and depression. It is indicated that it was not expected that the applicant and the second named applicant would be asked questions separately. Reference is made to not having legal representation. It is indicated that it is difficult to remember the precise time and date of incidents. There is a reference to the second named applicant having a road accident in 2003 resulting in her taking too many painkillers and this is the explanation as to why she has told the Tribunal so many things that she cannot remember.

62.    In the second Tribunal hearing with respect to the current application, when these various inconsistencies were put to the second named applicant, she reiterated that there were communication problems in conveying the detail of the events to her husband.

63.    The Tribunal acknowledges that the fact that the applicant was not present when the visits by the Awami League occurred in 2007 could result in him not having clear information as to what occurred on the basis that it would have been provided to him second-hand by his wife. Nevertheless, both the applicant and the second named applicant, as outlined in the first Tribunal decision, gave unqualified evidence as to what occurred. It would seem logical, that if the applicant was not able to indicate precisely what happened because he was not there, he would have indicated to the Tribunal that that was the case, rather than giving categorical statements as to what had happened. For that reason, the Tribunal does not consider the fact that the applicant was not there explains the significant inconsistencies in the accounts as to what happened.

22    The Tribunal also found, again, by way of example, that it was not plausible that the first appellant would still be of interest to the Awami League in 2007 and 2010 if his last involvement in politics was in 1995. See the Tribunal’s reasons at [79], as follows:

79.    Fifthly, it is implausible to the Tribunal that the applicant would continue to be of adverse interest from locals associated with the Awami League on his visits in 2007 and 2010, more than 12 years following his last political involvement in Bangladesh, and noting that the applicant was not politically active, nor had an intention to be politically active, on his return visits. The Tribunal also notes that the applicant has claimed few difficulties as a result of his BNP involvement whilst in Bangladesh prior to 1995 other than some temporary skirmishes. The applicant did not indicate that he was specifically targeted for harm by the Awami League during this pre-1995 period and the Tribunal has found that he was not so targeted. The fact of the applicant not facing significant adverse attention from the Awami League whilst he was actually politically active is undermining of claims that they would be targeting him more than 12 years later.

23    For those, and a number of other reasons to which it is not necessary to refer here, the Tribunal found as a result of the cumulative impact of the credibility concerns that it was not satisfied that the first and second appellants had been truthful. See the Tribunal’s reasons at [90]-[96], as follows:

90.    The Tribunal is not satisfied that there was any difficulty in the second named applicant giving evidence in the second Tribunal hearing due to throat issues affecting her voice.

91.    The Tribunal does not consider the fact that the applicants were not aware that they would be asked questions separately provides an excuse for significant-inconsistencies in the evidence.    

92.    The Tribunal considers the inconsistencies and five credibility concerns identified on a cumulative basis. It makes allowance for the stress and anxiety of the interview and hearing process. It makes allowances for the applicants not having legal advice at an early stage of the proceedings: The Tribunal also acknowledges that claims should not be dismissed based on the pedantic picking apart of evidence. It accepts that there may be understandable variations between the applicant’s evidence due to the passage of time and the stress of hearings.

93.    However, the events that are claimed to have happened in 2007 and 2010 are very impactful events for the applicant and the second named applicant. The Tribunal is also inclined to think that the events would be at the forefront of their minds as a result of their importance to their Protection visa applications.

94.    Considering the cumulative impact of the inconsistencies in the evidence identified, the Tribunal is not satisfied that they are explicable for the reasons advanced by the applicant and the second named applicant. Inconsistencies permeate the evidence of the applicant and the second named applicant on significant matters.

95.    The Tribunal notes that the fourth and fifth issues identified, which go to plausibility, stand apart from the explanations provided by the applicants.

96.    The cumulative impact of the five credibility concerns identified cause the Tribunal to the view that the applicant and the second named applicant have not been truthful in relation to claims as to what occurred in Bangladesh in 2007 and 2010.

24    Contrary to the ground sought to be raised in ground 13, that there was insufficient logical or evidentiary connection between the Tribunal’s assessment of credit and the material to which it relied, the Tribunal’s reasons are, in fact, cogent. In any event, those findings of credit were a matter for the Tribunal to determine.

25    Ground 14 is not, in fact, a ground. It is, rather, a quote from a decision of the High Court, so it is not necessary to consider.

26    The same is true of ground 15.

27    A separate unnumbered ground asserts that the Federal Circuit Court failed to hold that the AAT ignored a relevant matter and made a decision with a closed mind but, for the reasons that I have given above, that ground too cannot succeed.

28    Ground 16 is not an independent ground because it is a quote from a paragraph of the Tribunal’s reasons concerning the complementary criterion, which is an issue that I have already dealt with and which is, in any event, raised by another ground or purported ground of appeal.

29    For the reasons given above, I give the appellants leave to amend their grounds of appeal to include grounds 3, 4, 5, 6, 7, 8, 9 and 10 of the Outline of Submission. I decline to give the appellants leave to rely on grounds 1, 2, 11, 12, 13, 14, 15 and 16 because they are new and have no merit, for the reasons I have given.

30    For all of those reasons, it follows that the appellants’ appeal must be dismissed with costs.

Associate:

Dated:    25 June 2019