FEDERAL COURT OF AUSTRALIA

ADO16 v Minister for Home Affairs [2019] FCA 1419

ORDERS

THE COURT ORDERS THAT:

1.    Leave be refused to rely on proposed grounds 4, 5 and 6 of the notice of appeal.

2.    There be leave to rely on grounds 1, 2 and 3.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent's costs fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal.

2    It is not necessary to set out the procedural history of the appellant's visa application, as it is summarised in the reasons of the primary judge. However, it should be noted that the completion of the visa application process review and appeal process has been extended for two reasons.

3    First, the former Refugee Review Tribunal (RRT) determined an application for review of the delegate's decision, but due to error on the RRT's part the Federal Circuit Court remitted the matter to the Tribunal with the Minister's consent. The Tribunal set aside the decision of the delegate refusing to grant a class XA protection visa, but substituted a decision to refuse to grant the appellant the correct class of protection visa, being a class XD visa.

4    Second, this appeal remained in abeyance pending the result of the decisions of the High Court in appeals from Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36. Those appeals have now been determined: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.

Protection claim before the Tribunal

5    The appellant is a citizen of Bangladesh.

6    As to the claims made by the appellant, the Authority summarised them in the following way:

(1)    the appellant claims to fear harm because he and some family members, specifically his father, are members of Jamaat-e-Islami (JeI), an Islamist political party in Bangladesh. He claims to have joined JeI in 2004 and participated in its activities;

(2)    as a result of his family's membership, members of the rival Awami League (AL) political party harassed, beat, extorted and threatened to kill the appellant and his family, and forced him to close his business. He also claims that his uncle, who is an AL member, poisoned his father, and that his father was ill-treated in hospital;

(3)    in one of his entry interviews, the appellant made a false claim that he had been accused of the murder of an armed or terrorist group and had gone into hiding. He retracted this claim in his statutory declaration in support of his protection visa application, stating that he had been advised to make it by other people in immigration detention because he feared deportation; and

(4)    in evidence before the RRT, the appellant added that his son had been abducted, his uncle spread rumours that he had converted to Christianity with the result that members of his village have beaten his family and killed his cousin, and that his house has been ransacked.

The Tribunal's findings

7    The Tribunal had regard to the appellant's evidence given before the RRT, as well as the Tribunal.

8    The Tribunal provided an extensive outline of the appellant's claims.

9    However, the Tribunal considered the appellant was not a credible witness, with the result that it rejected his testimony. It considered his testimony to be inconsistent, implausible and fabricated.

10    With respect to the appellant's membership in JeI, the Tribunal found that he had not demonstrated interest or involvement in JeI politics after arriving in Australia, and that if he was involved in JeI politics in the manner he claimed in Bangladesh then he would continue to be actively interested in JeI in Australia. It also found his evidence to be vague and not commensurate with that of a person who was a member of that party: for instance, the Tribunal noted that he was unable to articulate party policies. The Tribunal rejected a Character Certificate provided by the appellant in light of independent information as to widespread document fraud in Bangladesh, the lack of official marking on the document and a spelling error in what purported to be the official stamp of the party secretary.

11    The Tribunal noted that the claims made by the appellant in his entry interview were substantially different to those made in his statutory declaration attached to his protection visa application. It considered and rejected a number of submissions as to credibility made by the appellant's representative. It further noted that the appellant was inconsistent in his justification for why he fabricated those claims and found that the appellant had continued to be untruthful in his explanations to the Tribunal.

12    The Tribunal went on to make detailed findings of fact rejecting the appellant's claims that he was subject to a rumour that he had converted to Christianity and his son had been abducted; that a false case had been made against his brother; that his father had been poisoned and was mentally ill; that he had been extorted at gunpoint by an AL member; and that one of the reasons he left Bangladesh was because one of his cousins was involved in a fight.

13    Ultimately, the Tribunal found that the appellant was not a credible, truthful or reliable witness and rejected each of his claims.

14    The Tribunal additionally considered whether the appellant would face harm on the basis of the (historic) Department of Immigration and Border Protection's data breach. It found that he would not.

15    The Tribunal rejected the appellant's Convention claim and his complementary protection claim. That is, it was not satisfied that there was a real risk the appellant would suffer significant harm on his return to Bangladesh, and was not satisfied that the appellant is a refugee under s 36(2)(a) of the Act or otherwise a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Before the Federal Circuit Court

16    The application before the Federal Circuit Court contained only an unparticularised assertion that the Tribunal's decision was not made according to law. The primary judge nonetheless asked the appellant to describe in detail his complaints about the Tribunal decision and reviewed the Tribunal's reasons for decision.

17    The primary judge found no jurisdictional error in the manner in which the Tribunal had assessed the appellant's protection claim.

18    Additionally, the Minister raised before the primary judge the existence of an invalid certificate purportedly made under s 438 of the Act which was given to the Tribunal prior to its hearing without the appellant's knowledge.

19    The primary judge reviewed the authorities as they stood at the time of his decision. He relied on Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 as authority permitting him to inspect the material the subject of the certificate. He then outlined the contents of those documents and stated:

37.    The information set out in the documents is mundane and innocuous. It merely records the recognition of the Department that there had been an error by the first Tribunal and a decision to consent to having its decision set aside. It was irrelevant to any issue to be considered by the second Tribunal. There is no rational basis for considering that it may have affected the Tribunal's consideration of the applicant's claims.

38.    There is no basis to consider that the Tribunal may have acted in some unspecified way on the invalid certificate that constituted the first form of jurisdictional error in MZAFZ.

39.    Secondly, there is no basis for considering that the failure to disclose the certificate to the applicant has disadvantaged him in any way or that the Tribunal could have reasonably considered that the information would be a reason or part of the reason for affirming the decision under review, requiring consideration of the obligation of notice under section 424A of the Act.

40.    Accordingly, I am satisfied that the applicant has not been deprived of a possibility of a successful outcome by the non-disclosure and, accordingly, relief is refused on discretionary grounds.

Grounds of appeal before this Court

20    In his Notice of Appeal, the appellant raises six unparticularised grounds of appeal. These are as follows:

1.    The Tribunal & FCCA was in error by making a decision on my case which is not in a substantive sense fair; it is a denial of natural justice.

2.    The Tribunal & FCCA failed to assess whether legislation properly construed the obligation to accord natural justice.

3.    The Tribunal & FCCA did not assess/consider the real risk of significant harm to my person upon return to Bangladesh.

4.    They relied on irrelevant factors and materials which have nothing to do with my persecution.

5.    They ignored relevant materials. Identified the wrong Issue and asked themselves wrong questions.

6.    They made an incorrect interpretation and applied applicable law in a way that affects the exercise of power.

21    The appellant further submits by his supporting affidavit that the Court should find in his favour on compassionate grounds, given the length of time he has been held in detention and the deterioration of his health in that time. Whilst one can empathise with the appellant's position, these matters do not indicate error on the part of the primary judge and do not comprise a valid ground of appeal.

22    There are clearly difficulties with the grounds in the notice of appeal. The grounds were not expressly raised before the Federal Circuit Court and on that basis, the Minister submits, leave is required for them to be raised and leave should be refused. Further, the grounds impermissibly seek review of alleged errors by the Tribunal, rather than error on the part of the Federal Circuit Court, and even treating the grounds as an allegation of error on the part of the Federal Circuit Court, the grounds of appeal are not particularised.

23    The principles applicable to an application for leave to raise a new ground of appeal were comprehensively collected and addressed by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [4]-[18]. Relevant matters that must be carefully weighed include whether the proposed ground has merit, whether there is prejudice to the respondent (noting that a layer of review is in effect removed where leave is granted), whether it is a matter of construction or law that could have been met by evidence below, whether there is an acceptable explanation for the ground not being run below, and whether it is in the interests of justice to grant leave.

24    The appellant did not explain why the grounds were not raised before the Federal Circuit Court but in an affidavit filed in support of his appeal he said that the primary judge did not arrange a lawyer for him. I note that the primary judge was not obliged to do so, and regardless it is apparent that the primary judge considered the appellant's position in detail and took into account arguments that may have been available to the appellant. I acknowledge that the appellant is unrepresented and was also unrepresented before the primary judge. I acknowledge the difficulties he faces in articulating grounds of appeal. Therefore, for the purpose of considering whether there may be any merit in the matters the appellant wished to raise, and even allowing for the lack of particularity in the proposed grounds, I have had regard to the appellant's oral submissions and have also considered closely the reasons of the Tribunal and primary judge.

Rejection of protection claims

25    Before me the appellant submitted that the Tribunal was wrong to disbelieve him. He said he was not lying; that he was involved in JeI politics as he had claimed; that he was at risk of serious harm from the AL; that the documents he provided were not forged and that he had asked the Tribunal to look into Bangladesh's political situation on the internet.

26    In the end, the appellant's complaint is that his protection claim did not succeed and that had he been believed, it would have been successful.

27    It is apparent that the Tribunal did not accept that the appellant's claims were credible and it explained how it came to that view. It reasoned that there were inconsistences in the appellant's evidence, lack of knowledge on his part about particular matters that should have been within his knowledge based on his claims and fabrications that were not properly explained. For example, it is true that the Tribunal rejected his claim to be involved in JeI. But in so doing it pointed to a lack of particular interest in JeI politics; inconsistences as to when he said he joined JeI and the process for doing so; lack of knowledge of its manifesto; lack of ability to state its policies; and a forged certificate that could add no weight to the appellant's claims. It explained its reasons for finding that the certificate was forged.

28    The Tribunal reviewed statements the appellant made in entry interviews that were substantially different to claims made in his statutory declaration attached to his visa application. The Tribunal listed a large number of inconsistencies, and noted that it was not satisfied with the appellant's explanation for those inconsistencies: there was no medical evidence to support claims of psychological trauma as an explanation; the appellant had provided detailed conflicting descriptions of alleged events; the appellant had obtained bogus documents to support his claims; he provided fabricated accounts to justify making a claim that he was subject to a false murder charge. The combination of fabrication, inconsistences and false evidence supported a finding that the appellant was not a credible witness.

29    The Tribunal undertook a similar process of considering inconsistencies in the appellant's evidence as to claims that rumours were spread that he was a Christian; that his son was hurt; that his son was abducted; and that his house was ransacked. The Tribunal considered that taking into account the nature of the claims, particularly as to his son, there would have been consistent and detailed evidence of the events, and the Tribunal found the inconsistencies in the evidence supported its view that the appellant was not a credible witness.

30    The Tribunal similarly considered issues and inconsistencies with evidence as to the balance of the appellant's claims, including about the false case said to have been brought against his brother, and allegations about his father's health issues.

31    In summary, the Tribunal provided a very detailed assessment of the appellant's evidence and gave reasons that explained its credibility findings. Its reasoning process was fully revealed and logical. It had regard to country information.

32    The primary judge found no error in the manner in which the Tribunal assessed the appellant's protection claim and in my view the primary judge was right to come to that view. No error on the part of the primary judge is disclosed. The proposed grounds of appeal insofar as they can be said to relate to credibility findings of the Tribunal or rejection of his protection claims are without merit.

Certificate

33    Because this hearing was adjourned pending the High Court's decision in SZMTA, it is appropriate that I address the certificate argument. It is not in issue in this case that an invalid s 438 certificate was provided to the Tribunal without notice to the appellant.

34    The issues that arise from such a course, taking into account the reasons in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 and the High Court's decision in SZMTA, were recently set out by Katzmann J in SZTVA v Minister for Immigration and Border Protection [2019] FCA 1245. I respectfully adopt her Honour's summary:

[63]    It is common ground that neither the information nor the existence of the certificate was disclosed to the appellant. The Minister offered an innocent explanation for this omission which was not challenged and which I accept.

[64]    In MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [29] Beach J held invalid a certificate purportedly issued by a delegate of the Minister under s 438(1)(a) of the Act which stated that the disclosure of the information 'would be contrary to the public interest because it contains internal working documents'.

[65]    His Honour held (at [35]-[36]) that the phrase in s 438(1)(a) - 'the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed' - is a reference to public interest immunity and (at [37]) that the reason given in the certificate (that the information contained internal working documents) was neither a necessary or sufficient basis for public interest immunity. In the absence of evidence to the contrary, his Honour concluded (at [40]-[43]) that the Tribunal acted 'in some unspecified way' on the invalid certificate in relation to the documents to which it related, may not have properly turned its mind to whether it ought to have disclosed certain matters to the applicant under s 424AA or s 424A of the Act and whether the documents in fact supported the applicant's visa application, and disclosure should have been made in any event. His Honour went on to hold (at [44]) that, by proceeding or acting on an invalid certificate, the Tribunal fell into jurisdictional error.

[66]    His Honour also held (at [50]) that procedural fairness required that the Tribunal disclose to the applicant the existence of the certificate, give him an opportunity to make submissions on its validity, tell him to what extent, if any, it was going to take into account information covered by the certificate or, at least whether the information was favourable, unfavourable or neutral to the applicant, and at least give him an opportunity to seek a favourable exercise of the discretion under s 438(3)(b). His Honour held that the obligation was not excluded by s 422B, which relevantly provides that Pt 7 Div 4 of the Act and s 438, in so far as it relates to that Division, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule 'in relation to the matters they deal with'.

[67]    In Singh, the Full Court (Kenny, Perram and Mortimer JJ) approved MZAFZ in the context of a certificate issued under the analogous provision, s 375A, confirming the decision of the Federal Circuit Court to grant Mr Singh relief and remitting the application to the Tribunal on the ground that procedural fairness required the Tribunal to disclose to the applicant the existence of the certificate.

[68]    In Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1 at [65] the Full Court (Kenny, Tracey and Griffiths JJ), like Beach J in MZAFZ, said that, in the absence of evidence to the contrary, it could be assumed that, in coming to its decision, the Tribunal had had regard to any document said to be covered by the s 438 certificate. In this context, the Court explained, 'to say a decision-maker has had 'regard' to or 'acted on' a document is to say that the decision-maker has treated the document as material in some way to the decision on review'. The Court pointed out, however, that non-disclosure will not always give rise to a denial of procedural fairness. In every case, it is necessary to examine 'all the circumstances and the consequences for the applicant of the non-disclosure'. In the event that the documents were found on inspection to be incapable of having any bearing on the Tribunal's decision, the Court continued at [69], then, irrespective of whether the certificate or notification was valid, in all likelihood, non-disclosure could not have deprived the applicant of an opportunity to advance his or her case.

[69]    In SZMTA, the Minister conceded that a notification by the Secretary to the Tribunal that s 438 applies to a document or information is sufficient to imply an obligation on the part of the Tribunal as a matter of procedural fairness to disclose the fact of the notification to the applicant for review unless the obligation is specifically excluded by the statutory scheme. Bell, Gageler and Keane JJ said at [27] that the concession was correctly made for the reasons set out at [29]-[31] of the judgment. In short, the provision of the certificate changed the procedural context in which the opportunity to present evidence and make submissions is routinely afforded and the context in which the applicant's entitlement (conferred by s 423) to present written argument relating to the issues arising in relation to the decision under review falls to be exercised. As their Honours explained at [31]:

The entitlement under s 423 extends to allowing the applicant to present a legal or factual argument in writing either to contest the assertion of the Secretary that s 438 applies to a document or information, or to argue for a favourable exercise of one or both of the discretions conferred by s 438(3). This entitlement, at least in those specific applications, is capable of meaningful exercise only if the applicant is aware of the fact of a notification having been given to the Tribunal.

[70]    Their Honours said at [38] that, because procedural fairness requires disclosure of the fact of notification, without more, non-disclosure of the fact of notification is a breach of the Tribunal's implied obligation of procedural fairness. But their Honours went on to say that, for such a breach to amount to jurisdictional error on the part of the Tribunal, it must give rise to a 'practical injustice'. In other words, 'the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision'. A breach is material 'only if compliance could realistically have resulted in a different decision': SZMTA at [44]–[45] (Bell, Gageler and Keane JJ).

35    The primary judge had before him the relevant certificate and attached materials, provided by way of an affidavit. The certificate suffers from the same defects identified in MZAFZ and it was conceded by the Minister that it was invalid (primary judge's reasons at [27]). The documents covered by the certificate are described at [36] of the primary judge's reasons. As in SZTVA, the materials were innocuous and irrelevant, and failure to disclose them gave rise to no practical injustice. Accordingly, as the primary judge correctly identified, there was no jurisdictional error on the part of the Tribunal as a result of the failure to disclose the s 438 certificate. No error on the part of the primary judge is disclosed.

Outcome

36    I would decline to grant leave to rely on proposed grounds 4, 5 and 6 as they are without merit and are unparticularised.

37    However, in fairness to the unrepresented appellant, I would give proposed grounds 1 to 3 a generous reading and on that basis, and to the extent leave is required, would grant leave to rely on them on the basis that grounds 1 and 2 are directed at the certificate issue, and ground 3 is directed at the credibility findings that underlie the Tribunal's finding that it was not satisfied that there was a real risk the appellant would suffer significant harm on his return to Bangladesh. Both of those matters were raised in the primary judge's reasons and it could be argued that the grounds are not entirely new although they were not appropriately particularised.

38    In any event, as my reasons indicate, I have had the opportunity to consider those grounds. Having considered the reasons of the Tribunal I discern no jurisdictional error on its part and the primary judge did not err in the manner in which he dealt with and determined the appellant's application. Accordingly the appeal must be dismissed with costs.

39    The Minister by affidavit has sought a fixed sum for costs in the amount of $7,241, being the amount provided for under Schedule 3 of the Federal Court Rules 2011 (Cth) for short form bills under the Act. The affidavit discloses that actual legal costs and disbursements incurred by the Minister exceed that amount, and accordingly I consider it appropriate to order costs in the amount sought.

Associate:

Dated:    30 August 2019