FEDERAL COURT OF AUSTRALIA

BGQ18 v Minister for Home Affairs [2019] FCA 1001

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, identified by the pseudonym BGQ18, was born in Bangladesh in 1984. He entered Australia in 2013.

2    In March 2017, he applied to the Department for a Safe Haven Enterprise visa. That application was rejected by a delegate of the Minister in June 2017 (the “Decision Record”) and the matter was referred to the Immigration Assessment Authority (the “Authority”). In February 2018, the Authority affirmed the delegate’s decision not to grant the visa.

3    In March 2018, BGQ18 filed an application in the Federal Circuit Court of Australia seeking review of the Authority’s decision. The sole ground upon which that application was advanced was that:

The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

That Court dismissed the application in November 2018: BGQ18 v Minister for Home Affairs [2018] FCCA 3605.

4    A Notice of Appeal was then filed in this Court. The three purported Grounds of Appeal there set forth are expressed as follows (without alteration):

1.    The IAA failed to exercise its jurisdiction by failing to consider all aspects of my claims.

2.    The IAA failed to consider my claim on the basis of my political opinion.

3.    The IAA failed to assess the harm that I may face based on my political opinion

5    The Appellant appeared before this Court unrepresented, albeit with the assistance of an interpreter. The Respondent Minister appeared by his solicitor. The Second Respondent, the Authority, filed a Submitting Notice save as to costs. The Respondent Minister filed a written Outline of Submissions. The Appellant did not file any such submissions.

6    The appeal is to be dismissed with costs.

Claims founded upon an imputed political opinion

7    The basis upon which the now-Appellant advanced his claim for a Safe Haven Enterprise visa was summarised in Part 4 of the delegate’s Decision Record. Part of the claims being advanced centred upon the Appellant’s claim that he was “not involved directly with any political party” but had a political allegiance imputed to him. In making findings in respect to the Appellant’s “[i]mputed political involvement” the delegate in the Decision Record wrote:

Pressure from BNP and AL

The applicant claims that he left Bangladesh because he was pressured by both AL and BNP to join their parties. …

The delegate summarised the claims and concluded:

Given the above information, I find it plausible the applicant might have been approached and invited by BNP and AL to join their parties whilst in Bangladesh. I however remain unconvinced that the applicant was pressured and specifically targeted by [Bangladesh Nationalist Party] and [Awami League].

8    The Authority also considered the claims made by the now-Appellant. The Authority summarised those claims as follows at para [3] of its decision:

The applicant’s claims can be summarised as follows:

•    He is a national of Bangladesh, a Sunni Muslim and an ethnic Bengali who originates from a village in Sultanpur Union, Brahmanbaria Sadar Upazila (sub-district), Brahmanbaria District, in Bangladesh’s Chittagong Division.

•    He departed Bangladesh because he was being constantly pressured by both the Awami League and the Bangladesh Nationalist Party (BNP) to join their respective parties.

•    He fears that if he returns to Bangladesh he will suffer harm from, and be possibly killed (assassinated) by, either the BNP or the Awami League because he has refused to join them.

9    The Authority then went on to address each of these three claims. The first claim was not in dispute. However, in considering the latter two claims, the Authority rejected much of the evidence, and the claims made by the now-Appellant, as (for example) “unconvincing”.

10    Without being exhaustive, the Authority thus addressed the claims made by the now-Appellant and the evidence given during the interview with the delegate as follows, in part, (without alteration):

[14]    As noted above, in his written claims the applicant submitted that he had told the Awami League that he had no interest in joining either the Awami league or the BNP and that subsequently the Awami League became angry when they observed that the applicant’s uncle, a president of the BNP, was holding political discussions in the applicant’s tailoring shop. It was after this that the Awami league attacked the applicant and ransacked his shop, and then persistently harassed him to join them, with the BNP inviting the applicant to join them and promising that they would take revenge upon the Awami League for him.

[15]    At the SHEV interview the delegate asked the applicant about the uncle who was a president of the BNP. The applicant said that this man was his mother’s sister’s husband and that he lived not far from his own family’s village and that he was the BNP committee president at the police district (thana) level. … Given the equivocal nature of the applicant’s evidence I have not found this aspect of the applicant’s evidence convincing; moreover, and although I accept that the applicant has no interest in politics, I find it doubtful that the applicant could, even so, have remained unware of the specifics of his uncle’s political position if this uncle was spending every second or third afternoon discussing politics with other BNP members at the applicant’s tailoring shop (a business place which the applicant had earlier indicated amounted to just one room).

[16]    The delegate asked the applicant about his claim that the Awami league had attacked him at his shop, and ransacked the premises, and how many times he had been attacked. The applicant said he had been attacked only once and that this was in August 2012. The applicant was invited to describe why this attack had occurred. The applicant said that the Awami League was putting pressure on him to join their party, and so were the BNP, but he was not willing to join either party and that one day his uncle was in his shop having a discussion and out of anger the Awami league told him: you are not willing to join either party but your uncle is visiting your shop. The applicant was asked if he could explain why the Awami League would have been suddenly made angry if his uncle, the BNP’s local thana president, had been regularly in the applicant’s store holding political discussions since 2009. The applicant responded that his uncle was not there regularly but only once-in-a-while. The delegate put it to the applicant that earlier in the interview he had said that this uncle had been coming to his store every second or third day. The applicant responded that his uncle came whenever he felt like it, and that the Awami League only found out about this later on and it was something they became aware of gradually. It was put to the applicant that it if his uncle was the BNP’s local thana president, and was using the applicant’s store in the village marketplace to hold political discussions, it did not seem plausible that the local Awami League could have remained unaware of this until August 2012. The applicant responded that he did not ask his uncle about his position with the BNP and that when his uncle felt like it he visited, usually in the afternoons.

(citations omitted)

In assessing the possibility of harm that the now-Appellant would suffer if he were returned to Bangladesh, the Authority concluded:

[19]    … I do not accept that the applicant has a relative who is the BNP’s local thana president in the applicant’s home area (or that this relative or the applicant are in any way associated with the BNP). Given this, and given that the applicant does not have any political associations of any kind, or even any interest in politics or in voting, I am not satisfied that the applicant, if he were to return to Bangladesh, would face a real chance of harm of any kind from the Awami League or the BNP.

The Authority further concluded:

[20]    … Nor does any of the other evidence before me indicate that the applicant would face a real chance of harm of any kind if he were to return to Bangladesh for reason of having departed Bangladesh illegally and/or for being a failed asylum seeker (and/or for having sought asylum in Australia), and I am therefore not satisfied that the applicant would face a real chance of suffering harm of any kind on any such basis or if they are considered in combination.

(citation omitted)

A failure to consider the claims made?

11    The Grounds of Appeal now relied upon suffer from a number of difficulties, including the fact that:

    none of the three Grounds identify any appellable error said to have been committed by the primary Judge but rather seek to assert error on the part of the Authority;

    those grounds would appear to be arguments not previously advanced before the Federal Circuit Court and would, accordingly, require the leave of this Court before they could now be relied upon, a requirement which recognises that a party is normally bound by the manner in which a case is run at first instance (e.g. Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ) but a requirement which also recognises that a new argument may be relied upon on appeal where it is expedient in the interests of the administration of justice to do so (e.g. VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel, Weinberg and Stone JJ); and

    the arguments now sought to be advanced appear contrary to the consideration given to the claims by both the delegate and the Authority.

The first two difficulties can be placed to one side. Albeit not a course to be endorsed, it is by no means unusual for an unrepresented appellant to draft Grounds of Appeal in a manner which focusses more upon the nature of the underlying argument sought to be ventilated rather than upon identifying the manner in which a primary Judge erred in resolving that argument. The second difficulty is, and again a course not be endorsed, but is a difficulty frequently encountered by unrepresented parties.

12    It is unnecessary to dwell upon the first two difficulties because the Authority did in fact address the claims raised by the now-Appellant in the Notice of Appeal filed in this Court and, in particular, did consider the “pressure” being put upon him by political parties in Bangladesh. And, further, the Authority resolved those arguments.

13    The manner in which the Appellant now sought to contend that there was not a proper consideration of his claims was not further expanded upon during the course of the hearing before this Court, other than a general submission from the Appellant that everything he had “stated is truth…” and should be “given proper consideration by the Court”. “All aspects” of the claims made by the now-Appellant, as summarised by the Authority, were resolved. The claim founded upon, in particular, the Appellant’s “political opinion” was expressly addressed and resolved. And the potential “harm” that the Appellant would suffer if returned to Bangladesh was also addressed in the Authority’s decision.

14    In the absence of any reason to question the consideration in fact given to these claims, the Grounds of Appeal descend to an impermissible argument that the Authority “got it wrong on the facts”.

15    There was thus no error in the Federal Circuit Court Judge dismissing the application for review.

CONCLUSIONS

16    Irrespective of whether the argument now sought to be advanced in the Notice of Appeal was a “new argument” which required “leave” before it could be relied upon and whether “leave” should be granted, the argument sought to be raised is without merit. There is no merit in any argument that the Authority:

    failed “to consider all aspects” of the claims made – the “claims” made being summarised at para [3] and addressed (inter alia) at paras [5] to [21];

    failed to consider the claim based on the now-Appellant’s “political opinion” – that claim being addressed at (inter alia) paras [14] and [15]; or

    failed to “assess the harm” that would be suffered if the now-Appellant were to be returned to Bangladesh – that claim being addressed at (inter alia) paras [19] to [21] and [24] to [25].

The Authority therefore considered and resolved the claims founded upon the Appellant’s imputed political opinion.

17    The appeal should be dismissed.

18    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    28 June 2019