FEDERAL COURT OF AUSTRALIA

BQW16 v Minister for Immigration and Border Protection [2019] FCA 1000

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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    This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) given on 14 November 2018 dismissing an application to set aside the decision of a delegate of the first respondent (the Minister) refusing to grant to the appellant a temporary Protection (Class XD) (subclass 785) Visa (temporary Protection Visa).

2    The appellant is a citizen of Bangladesh. He arrived in Australia on 6 May 2013 as a so-called “unauthorised maritime arrival”. He applied for a permanent Protection (Class XA) Visa on 4 August 2013 (permanent Protection Visa).

3    On 19 December 2014, the delegate refused to grant the appellant that visa. The appellant then sought review of the delegate’s decision by the Tribunal then known as the Refugee Review Tribunal. The appellant appeared at a hearing before the Tribunal in April 2016, and by a decision dated 8 June 2016 it set aside the decision to refuse the appellant a permanent Protection Visa, and substituted a decision to refuse the appellant a temporary Protection Visa.

4    Although the appellant on the hearing of this appeal sought to make something of this point, the reason that the Tribunal substituted a decision to refuse one visa for another was the necessary consequence of the operation of law, and, in particular, the operation of s 45AA of the Migration Act 1958 (Cth) and regulation 2.08F(2)(c) of the Migration Regulations 1994 (Cth).

5    As a result of that provision and the regulation, from 16 December 2014 the appellant’s application was taken to be, and to have always been, a valid application for a temporary Protection Visa.

6    The appellant’s claims were set out in a statutory declaration that accompanied his visa application. I will set out the details of the claims made at that time, but, in substance, the appellant claimed to fear harm in Bangladesh from members of the Awami League because of his involvement in the Bangladesh Nationalist Party (BNP) and because he owned a business. He specifically claimed to have been a victim of extortion from a number of Awami League supporters, and that he and his brothers were beaten because he was unable to pay money. He also claimed that one of his brothers was missing.

7    The details of his claim for protection were as follows. His family had a farm on which they grew vegetables and rice and raised cows for milk; he had his own business as a shopkeeper; his brother was a member of the BNP and as a supporter he sometimes attended meetings. Additionally, he encouraged people to vote for the BNP. He placed posters around the village and helped at party meetings and events.

8    He claimed that he supported the BNP as they helped the poor people in his village, and that his problems started three or four months before he left Bangladesh in March 2013. At the beginning of the year, he said that approximately five or six men came from the Awami League to his shop to extort 250,000 taka from him. And that they told him that if he did not pay them, he would be beaten or killed. He said that he was given three days to come up with the money and that two days later, the men returned to the shop asking for money again. He called his brother to the shop, and when he refused to pay, he said that the men beat the applicant and his brother.

9    The appellant also claimed that he and his brother reported the incident to the village leader, who told the Awami League members that it was not possible for the appellant to pay so much money; that the Awami League members did not accept the village leader’s advice; that he sought advice from the village chairman, but he was not able to help them and that after he and his brother left, the Awami League members came to his house asking his parents about his whereabouts.

10    The appellant left Bangladesh on 20 March 2013. He says that he fears that he will be killed or seriously harmed if he returns. He says that the authorities in Bangladesh may protect him if he pays, and they will not accept his complaint against the men as it involves Awami League members and they are in power. He says that he could not relocate as the Awami League members are everywhere. Those claims are set out, and I have extracted them from, the reasons of the Tribunal at appeal book pp 186 and 187.

11    The Tribunal found the appellant’s “evidence on central aspects of his claims” to be “variously vague, unsubstantiated, as well as often inconsistent”. The essence of the Tribunal’s reasons in rejecting the credibility of the central aspect to the appellant’s claims is as follows:

(1)    The appellant’s claimed involvement with the BNP was implausible, given his evidence about his work commitments in the store and on the family farm. The Tribunal also found that it was not credible that the appellant would provide support for the party in the form of talking and encouraging people to join it without being a member himself.

(2)    The Tribunal found that the appellant’s evidence about the extortion claim was difficult to believe because:

(i)    the manner of presentation of the evidence appeared to be rehearsed;

(ii)    he was only able to provide a general description of events, even though he claimed to be present during the extortion incident and was directly asked what was said;

(iii)    he gave inconsistent evidence about the number of men involved;

(iv)    his evidence that his family did not take the incident seriously and, therefore, did not report it to the authorities was implausible.

(3)    The Tribunal found that the appellant’s evidence about a second visit from the men demanding money was inconsistent and was added to over time.

(4)    The Tribunal found that the evidence about what happened following the assault was inconsistent and contradictory.

(5)    The evidence about why he claimed he could not return to Bangladesh because he had not paid money was not consistent with the evidence that he came from a wealthy family, that the business was a family business, and that no claims for payment had been made against his parents or family.

(6)    The Tribunal found that the evidence about whether he went into hiding with family or friends and about whether his brother was missing in Bangladesh varied over time.

(7)    The appellant did not assert that his brother was the general secretary of the BNP until he was interviewed by the delegate, despite having been asked at his entry interview about the political involvement of himself and his family, when at that time he had stated that he and his brothers were only supporters of the BNP.

(8)    The Tribunal pointed to the appellant’s inability to provide any accurate information about the policies or principles of the BNP despite his claimed involvement with the party. The Tribunal found that that reflected poorly on the appellant’s credibility and led the Tribunal not to accept that he had a profile of a supporter of the BNP as the appellant claimed.

(9)    The Tribunal did accept that the appellant may have supported the BNP in a minor way, but it rejected the remaining factual basis of the appellant’s protection claims, and found in reliance on country information that any such support did not expose him to a real chance of serious harm.

12    The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The amended application contains grounds of application and particulars. It is contained at pp 195 and 196 of the appeal book, and sets out the following:

Grounds of Application

1.    The Administrative Appeal Tribunal (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the first respondent.

2.    The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

3.    The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1) of the Migration Act 1958.

4.    The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

5.    The applicant was deprived of the natural justice and procedural fairness. The Tribunal did not give neutral view in assessing/reviewing the applicant’s claim whose interest has adversely affected by the primary decision. The review authority did not given the applicant opportunity in a correct manner to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

Particulars

The applicant submits that the tribunal totally disregarded the fact that the additional documents that were submitted to the tribunal. The tribunal in its decision made and signed on 8 June 2016 relied upon country information and inconsistencies in the appellant’ s claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review. It failed to put those inconsistencies in writing to the appellant for comment.

Therefore the applicant submit that the tribunal further committed legal error by failing to consider those documents as required in Section 424(1).

The applicant was not given fair and proper opportunity to respond to the findings made by the tribunal that the documents tendered by the applicant were inconsistent or not genuine. The tribunal did not raise any question, that the produced documents were fraudulent.

The tribunal erred in rejecting the entire claim of the applicant and failed to give any benefit of doubt to the applicant in respect of any of the claims made by the applicant and in requiring the applicant to strictly prove all his claims and without properly taking into account his personal circumstances and the difficulty he was facing in obtaining all the evidence to prove all his claims.

The tribunal erred in making a finding that the applicant had concocted all of his claims in as much as the tribunal did not have evidence to make that finding.

The tribunal erred in failing to apply the correct subjective and objective test of well-founded fear and erred in failing to consider whether there was a real chance that the applicant may suffer persecution in the reasonably foreseeable future by reason his political beliefs.

A further possible ground relates to the non-compliance by the Tribunal with s424A of the Migration Act 1958 in relation to that extract from the primary decision on which it relied. The applicant believes that there is a reasonable argument that provided the under s 422B, there was a failure to comply with s424A in relation to the decision of the Tribunal. The tribunal was quite influenced and biased by the primary decision given by the delegate.

Post hearing the tribunal did not put any adverse issues, to the applicant, to make any comments, in writing, which were the reason, or part of the reason, for deciding that the applicant was not entitled to a protection visa .

The applicant submit that the Tribunal at no stage during the hearing brought to Applicant’s notice about this adverse conclusion determined to be made against the applicant at the end of the hearing, which was contrary to the law and manifestly unreasonable and had undermined the applicant’s claims for the refugee status in Australia.

13    The primary judge dismissed the application for review for the following reasons:

(1)    Ground one was rejected because it was in general terms, and in the absence of any particulars as to why an error of law had occurred, or how it was said that the Tribunal had exercised its procedures improperly, it was not possible to deal with the ground.

(2)    As to ground two, the primary judge held that neither the transcript of the Tribunal hearing, nor its decision record suggested that there could have been a reasonable apprehension of bias in connection with the decision of the Tribunal, and that no complaint had been made by either the appellant or his solicitor in relation to the conduct of the Tribunal at the hearing.

(3)    As to ground three, the primarily judge held the Tribunal’s decision record complied with s 430 of the Migration Act.

(4)    Ground four was rejected on the basis that it failed at a factual level for reasons that it is unnecessary to record here.

(5)    As to ground five, the primary judge held as follows:

There is not a skerrick of evidence that the Tribunal in this case was actually biased, or had in bad faith prejudged or pre-decided the review application. There is no evidence that the Tribunal truncated or restricted the applicant from presenting his case in the presence of and with the assistance of his solicitor, who again made no complaint to the Tribunal member in this regard.

14    In relation to the particulars contained in the amended application, the primary judge held that:

(1)    the Tribunal was not under any obligation to put perceived inconsistencies to the appellant;

(2)    the Tribunal’s decision record discloses that it gave meaningful consideration to the appellant’s claim, but in the end was not satisfied that they were credible;

(3)    there was nothing that suggested that the Tribunal had been improperly or illegitimately influenced by the delegate’s decision.

15    Before the primary judge, the appellant made the same complaint that he made today, both in his written submissions, and in the course of some brief oral submissions that he gave with the assistance of an interpreter this afternoon.

16    There is no merit or substance in the complaint that the appellant makes about the fact that he applied for a permanent Protection Visa, but that application was taken to have been an application for a temporary Protection Visa. That occurred by operation of law. It is not necessary for me to set out the details of the statutory provisions, but see the reasons of the primary judge at [50] and [51], and also the decision of Derrington J in BAP17 v Minister for Immigration and Border Protection [2018] FCA 1265 at [17] and [18].

17    The appellant then appealed to this court. The appellant’s notice of appeal contains two “grounds of appeal” and five “grounds of application”, as follows:

GROUNDS OF APPEAL

1.    The Hon. Federal Circuit Court (FCC) in its decision ignored some legal issues which were not clearly explained in the judgment delivered on 14 November 2018. The Hon. court has denied the applicant’s natural justice. There is no reason to make decision in favour of the respondent.

2.    The Administrative Appeals Tribunal (the Tribunal) did not follow the procedural fairness in reviewing the refusal of the applicant’s protection visa application. It is apparent that Tribunal has not acted in accordance with the prescribed law and Act.

Ground of Application

1.    The Tribunal made error of law and failed to exercise the proper procedure in relation to make its decision. There is another serious legal issue which should be considered by the Hon. Court that the applicant has reviewed a Protection visa application of Class XD but not the application of Class XA which the applicant has applied for and the department decided on.

2.    Court whether the Tribunal has legally dealt with the review application.

3.    The manner in which ‘the tribunal’ dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

4.    The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s424A and 422B(1)(a) and (b) of the Migration Act 1958.

5.    The tribunal was quite influenced and biased by the primary decision given by the delegate, which was why the applicant was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing.

18    As I mentioned earlier, the appellant also relied on written submissions, which are largely identical to the submissions relied upon before the learned primary judge, and on brief submissions made orally this afternoon.

19    Taking each of the grounds in turn, ground one does not identify any “legal issues” that were supposed to have been ignored by the primary judge, nor does it identify any issues that were not properly explained. For those reasons alone, the ground cannot succeed.

20    In any event, the reasons of the Tribunal make it abundantly clear that the appellant was afforded a reasonable opportunity to present his evidence and to make submissions.

21    Ground two of the “appeal” and one, four and five of the “grounds of application” can be dealt with together because they amount to the same thing and thus one ground only: namely, that the Tribunal failed to comply with statutory procedural fairness requirements. That ground cannot be made out. The Tribunal clearly complied with procedural fairness requirements. For example, by letter dated 4 April 2016 the appellant was invited to a hearing before the Tribunal which he attended, with the assistance of his representative and an interpreter.

22    It is also apparent from the Tribunal’s reasons, in particular at [16]-[30], that the appellant’s credibility was very much in issue at the hearing. The appellant’s credibility was also a central issue addressed by the delegate and was expressly addressed in the appellant’s own submissions to the Tribunal. In such circumstances, it is clear that the appellant was afforded sufficient opportunity to give evidence and present arguments about his credibility, which was the determinative issue on review. Compare SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47].

23    Grounds one, four and five of the “grounds of application” also raise the point about s 45AA of the Migration Act 1958 (Cth) and regulation 2.08F(2)(c) of the Migration Regulations 1994 (Cth). As I have explained, there is nothing in that point.

24    Ground two of the grounds of application contends that there was a jurisdictional error in the primary judge’s reasons. In the absence of the identification of any such error the ground cannot succeed.

25    Grounds three and five of the grounds of application also, in substance, make an allegation of bias against the Tribunal, but there is no merit in that point at all. Such an allegation is a serious one and it must be distinctly made and clearly proven as the cases well establish. There is nothing at all demonstrating that a fair-minded person might think that the Tribunal brought anything other than a fair and impartial mind to the making of its decision. Ultimately, the fact is that the Tribunal found the appellant not to be a credible witness. That was a finding of fact for the Tribunal to make, and there is nothing apparent in any of its reasoning that would suggest any error in the approach that it took. For those reasons, the appeal must be dismissed.

Associate:

Dated:    25 June 2019