FEDERAL COURT OF AUSTRALIA

ABJ19 as Representative of ABI19 v Minister for Home Affairs [2020] FCA 136

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The appellant in this proceeding is a little girl almost five years old. She is represented by her father, who is her litigation guardian. It is impossible not to feel sympathy for the position in which she finds herself.

2    She appeals orders made by the Federal Circuit Court dismissing her application for judicial review. Before the Federal Circuit Court, she sought review of a decision of the second respondent (Tribunal) made on 12 December 2018, by which it had affirmed a decision of the delegate of the first respondent (Minister), in April 2016, to refuse to grant the appellant a Protection visa.

3    There is no utility in setting out the background to this proceeding, nor the detail of the Tribunal’s decision. They are summarised in some detail by the primary judge in ABJ19 as Representative of ABI19 v Minister for Home Affairs [2019] FCCA 2137 at [1]-[26]. In short, the Tribunal found aspects of the father’s evidence to be “vague, evasive, implausible, contradictory and unconvincing”: Tribunal decision (TD) at [21]. It further found that there were many inconsistencies in his evidence and he was unable to provide a consistent or coherent account of events and made new claims during the course of the hearing: TD at [21]. Unsurprisingly in the light of these findings, the Tribunal found that he had given false evidence of his involvement with the Bangladesh Nationalist Party (BNP) in Bangladesh and although finding that he had attended some events in Australia relating to the BNP, it was further found that he had embellished his evidence of BNP involvement in Australia for the purposes of obtaining a Protection Visa for the appellant: see TD at [75].

B    GROUNDS OF APPEAL

4    To some extent, each of the appellant’s three grounds articulated in her notice of appeal together with particulars, raise a number of interrelated and overlapping issues. Doing the best I can to identify the actual issues with some clarity, the grounds of appeal can be summarised as follows:

(1)    The Federal Circuit Court failed to hold that the Tribunal failed to comply with s 424A or s 424AA in respect of information in the appellant’s father’s visitor visa and, in so doing, exceeded its jurisdiction because it made its own factual findings and therefore did not conduct a review: see TD at [75] (Ground 1);

(2)    The Tribunal failed to consider the appellant’s mother’s political activities under the complementary protection criterion, in breach of the no evidence rule and/or in a legally unreasonable manner (Ground 2A);

(3)    the Tribunal failed to consider the best interests of the appellant as a minor child (Ground 2B); and

(4)    the Tribunal failed to give proper, genuine and realistic consideration to the appellant’s claim that she would be “abducted, torture and death”, her parents’ claims concerning BNP involvement and their willingness to seek state protection (Ground 3).

5    I will come to each of these grounds in turn although, for reasons that will become obvious, I will deal with Ground 2A initially. It will also be necessary to deal with a further ground that emerged during the course of oral submissions related to Ground 2A which I will describe for the purposes of these reasons as Ground 2AA, and which I will explain below.

Ground 2A

6    At the commencement of the oral hearing, I raised with the Minister the question of whether there was any prejudice in Ground 2A being advanced in this Court, in circumstances where the argument (that there was no evidence to support a finding concerning the mother’s political activity or that such a finding was made in a legally unreasonable manner) was not advanced before the primary judge. Despite formal opposition to the appellant being granted leave, Ms Morris, who appeared on behalf of the Minister, did not press her objection on the basis that the Minister could point to no evidence that may have been adduced below, which could be relevant to the determination of the ground. In these circumstances I indicated that I was disposed to grant leave for the ground (as then articulated) to be advanced.

7    Informing the grant of leave was the preliminary view that there may be some substance in Ground 2A because, arguably, there did not seem to be a pellucid process of reasoning leading to the Tribunal’s non-acceptance of the assertion that the appellant’s mother was a supporter, member or office holder of the BNP in Australia.

8    The relevant finding was as follows (TD at [79]):

The Tribunal is not satisfied that the applicant’s father is a genuine BNP supporter, member and activist and therefore is not satisfied that he will have any desire to support the BNP or be involved with the BNP on his return to Bangladesh. The Tribunal does not accept that her mother is a supporter, member or officer holder in BNP Australia. The Tribunal is not satisfied that either of the applicant’s parents is of adverse interest to AL supporters, members or leaders or any Bangladeshi authority.

9    Earlier in the reasons, the followings appears (TD at [34]):

The Department has also been provided with a letter dated 13 May 2014 from BNP Australia in relation to the applicant’s mother. It states that she is the Assistant Vice President of the Bangladesh Jatiobadi Mohila Dol (sic). It states that she has always actively participated in various party occasions and meetings. As she did not attend the hearing, the Tribunal was unable to discuss this letter with her.

10    The letter itself is reproduced in the Appeal Book at AB189:

To Whome it May Concern

I have got a opportunity to provide reference for [redacted], date of birth [redacted] who is our political colleague and a dedicated activist of the Bangladesh Nationalist Party-BNP Australia.

Currently she is holding a position of Assistant Vice President of Bangladesh Jatiotabadi Mohila Dol (BJMD), associated with the Australia BNP.

She always actively participated in the various party occation and meeting of Bangladesh Jatiotabadi Mohila Dol (BJMD), Australia Inc and other community events in Australia.

If you require any information related to this matter please do not hasitate to contact me on [redacted].

I wish her all the best in future.

(*** ) 13/5/2014

Convener

Bangladesh Jatiotabadi Dol-BNP, Australia

11    It seemed to me that rejecting the representations made in the letter (as to the mother being an office holder, and inferentially a supporter or member of BNP Australia) simply on the basis that the mother did not attend the Tribunal hearing and could not provide evidence, may be problematical, in the absence of any objective material impugning the truth of the representations. Read by itself, [79] might suggest that the fact-finding might have miscarried because the evidence of the mother’s BNP Australia association was rejected simply on the basis of a broader dissatisfaction with the lack of genuineness of the father’s evidence. As the Tribunal’s reasons demonstrate, there were a large number of factors relied upon to reach an adverse view of the credibility of the father’s assertions concerning his involvement with BNP Australia.

12    On closer analysis, however, I am satisfied that the factual finding at [79] was open to the Tribunal and no jurisdictional error is established.

13    The starting point is s 5AAA of the Migration Act 1958 (Cth) (Act) which relevantly provides as follows:

Non-citizen’s responsibility in relation to protection claims

   (1)    This section applies in relation to a non-citizen who claims to be a     person in respect of whom Australia has protection obligations     (however arising).

(2)    For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

(emphasis added)

14    In terms of the appellant’s “evidence to establish the claim”, material was provided to the Tribunal which allegedly went to proving that the activities of her parents, and her father in particular, is of adverse interest to the Awami League in Bangladesh. The rejection of the material provided is recorded in the finding at [79] extracted above. It is noteworthy, however, that with the exception of the letter relating to the appellant’s mother (see [10] above), all the material before the Tribunal was directed to the father’s involvement with the BNP. In these circumstances, the Minister submits there was no express or clearly articulated claim put forward by the appellant to fear harm by reason of her mother’s involvement with BNP activities. There is some support for this submission when it is understood that the Tribunal’s discussion of the appellant’s mother’s involvement only arose because it recognised that the appellant’s mother (and other members of the appellant’s family) had made a Protection visa application (TD at [19]-[20]) and that there was a reference to the appellant’s mother in certain material before the Tribunal: TD at [34], [56], [58], [60] and [79]. In these circumstances, the Tribunal’s relatively brief consideration of the appellant’s mother’s activities was consistent with the manner in which the claims were presented. Despite this, as Ms Morris accepted, it is clear that the Tribunal thought it necessary to make a finding in relation to the position of the mother and indeed that is what occurred at [79] of the reasons.

15    When one views the Tribunal’s reasons as a whole, however, the reasoning process whereby the Tribunal concluded that it did not reach a state of satisfaction concerning the mother being a supporter, member or office holder in BNP Australia becomes apparent. At TD [56]-[58] the following appears:

Tenth, the Department has been provided with two letters dated 13 May 2014 from BNP Australia in support of the applicant’s case. The first letter is in relation to the applicant’s father and the second is in relation to her mother. The letter in relation to her father states that he was the Law Secretary of the Bangladesh Jatiotabadi Chatra Dol at Jagganath University from 1995 to 1999. It states that he was also the Joint Convenor of the Bangladesh Jatiotabadi Jubo Dol, Shabujbagh Branch in Dhaka city south. It states that in Australia he has been the Assistant Vice President of the Bangladesh Sheccha Shebok Dol since 2011. It states that he joined BNP Australia after he arrived in Australia and attends all activities.

There are significant inconsistencies between this letter and the evidence given by the applicant’s father. Firstly, he stated that he was the Sports Secretary in the BNP when he attended University between 1994 and 2000 and not the Law Secretary at University from 1995 to 1999 as stated in the letter. Secondly, he did not claim to hold any other office in the BNP in Bangladesh. The letter states that he was the Joint Convenor of the Jatiotabadi Jubo Dol, Shabujbagh Branch in Bangladesh. Thirdly, he stated that he was initially the Assistant Secretary of the Sheskta Sesal Dol and then joined the Jatiyabodi Dol at the end of 2017 and was appointed the Sports Secretary. The letter states that he was the Assistant Vice President of the Bangladesh Sheccha Shebok Dol since 2011.

These inconsistencies in the evidence raise concerns in relation to the accuracy of the letter from BNP Australia and the veracity of the applicant’s father’s evidence in relation to his involvement in the BNP in Bangladesh and the extent of his involvement in the BNP in Australia. It also raises concerns in relation to the accuracy of the letter from BNP Australia in relation to the applicant’s mother.

(Emphasis added)

16    It seems to me that in the absence of further material, it was open to the Tribunal to reason that the inconsistencies in the evidence given by the father and, in particular, the inaccuracy of the cognate letter provided by the same author in relation to the father was relevant in raising a concern in relation to the accuracy of the representations made in the letter relevant to the mother. As the Tribunal recognised, given that the mother did not attend the hearing, the Tribunal was unable to discuss the letter and its concerns with her: TD at [34]. In those circumstances, and given the state of the material before the Tribunal, the Tribunal’s conclusion that it was not satisfied the mother was a supporter, member or office holder in BNP Australia was open to it, and was not legally unreasonable.

17    In reaching that conclusion, it is appropriate to make reference briefly to the relevant authorities, which are well known. The Tribunal does not have to accept an applicant’s claims uncritically, as the principles summarised by Flick J in SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24] reveal:

… The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O’Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are the function of the primary decision-maker “par excellence”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J . To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.

18    The question of whether the decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision maker and involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at 422-424 [54]-[60] (Gageler J); 427-428 [78]-[79] (Nettle and Gordon JJ); 438 [135] (Edelman J). Such a conclusion can be drawn if the decision lacks an evident or intelligible justification. However, when the decision is read as a whole, I do not think the relevant finding could be characterised as lacking such a justification on the materials before the Tribunal. In this regard, it must be borne in mind that the Tribunal is to act on the materials before it, and it is the responsibility of the non-citizen to provide sufficient evidence to establish the claim.

Ground 2AA

19    As noted above, Ground 2AA emerged during the course of oral submissions. Prior to explaining the ground, it is necessary to identify a limited aspect of the factual background leading up to the decision of the Tribunal. It is apparent from the Appeal Book that the appellant was represented by experienced solicitors, Parish Patience Immigration Lawyers, at least immediately before and after the Tribunal hearing. There had been a number of communications between those solicitors and the Tribunal prior to the hearing and a notice to attend the hearing was sent to the solicitors in August 2018. In that letter, the solicitors were notified that if it was proposed that a witness give evidence at the hearing, a witness statement setting out the evidence should be provided to the Tribunal by 26 September 2018.

20    A response to the hearing invitation was completed on behalf of the appellant which indicated that the father would attend on behalf of the appellant. In answer to the question of whether or not it was requested that the Tribunal take oral evidence from another person, the answer “no” was given on behalf of the appellant.

21    The hearing occurred as scheduled on 3 October 2018 and as noted above, the Tribunal recorded in its reasons that the mother did not attend the hearing: TD at [34].

22    Unsupported by any evidence, from the bar table during the course of submissions, the father of the appellant asserted that the mother did attend the Tribunal hearing, but she was feeling unwell. It was said that this was communicated to the Tribunal member, and the mother indicated to the member that she had to leave, but further written submissions would be provided relating to her position. A further assertion was made by the father that notwithstanding this indication, the decision record of the Tribunal was provided on 12 December 2018, without receiving and considering those submissions.

23    When the lapse between the hearing and the provision of reasons was drawn to the litigation guardian’s attention, it was then contended that submissions had indeed been produced but they were provided to the solicitor and he was not aware whether or not they had been provided to the Tribunal. Although in the absence of corroborating material I have reservations about accepting these assertions, I do not think it really matters.

24    It seems to me that what was sought to be developed was a refined ground that the appellant was denied procedural fairness in that the appellant was deprived of the opportunity to put on supplementary submissions relating to the mother. Clearly, if this matter had been raised before the primary judge, it would have been plainly open to the Minister to adduce evidence as to the identity of persons who appeared before the Tribunal on 3 October 2018, including the tender of any attendance sheets and also evidence (perhaps from the appellant’s former solicitor) as to the father’s assertions as to the further submissions. In these circumstances, there is an obvious prejudice in allowing the issue to be determined on the basis of the father’s unsupported and untested assertions, and leave should be refused to rely on this ground.

25    I am fortified in my view in refusing leave because I do not consider there is substance in the proposed ground in any event. There was ample opportunity for the appellant to put additional material as to the mother before the Tribunal, including following the conclusion of the oral hearing at a time when the appellant was represented by competent solicitors, if there was a desire to do so.

Ground 1

26    I find Ground 1 difficult to follow. It is unclear what aspect of the Tribunal’s decision (and the decision of the primary judge) the applicant seeks to impugn. The reference to [75] of the Tribunal’s decision is confusing because [75] is a summary of credibility findings by the Tribunal. It is plain that assessing credibility is the function of the primary decision maker par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423 [67] (McHugh J). The credibility findings were open on the material, and appear to be based on rational grounds. A perusal of the Tribunal’s reasons demonstrates that the credibility findings were arrived at after consideration of matters that were logically probative as to the issue of credibility: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496. Further, concerns as to credibility were raised with (and information was put to) the appellant’s father during the course of the Tribunal hearing: TD at [24], [27], [29], [35]-[38], [49]-[57], [62] and [65]. No identified error has been articulated or demonstrated in these findings.

27    Other than asserting jurisdictional error generally, for completeness, to the extent any further point is being made by contending “[Tribunal] exceeded its jurisdiction … because it made its factual findings”, it is unclear what is meant. Of course, the Tribunal stands in the shoes of the Minister when reviewing a decision of the Minister or his delegate and, in doing so, conducts a de novo hearing which necessarily requires conducting a fact-finding exercise.

Ground 2B

28    There is nothing in Ground 2B. It is misconceived and proceeds on a misunderstanding of the relevant statutory criteria. The cases referred to by the appellant are directed to the operation of s 501 of the Act (“Refusal or cancellation of visa on character grounds”) and the relevant Ministerial Direction with regard to that provision, which provides for a requirement to consider the “best interests” of minor children. Here the Tribunal was required to determine whether the criteria in s 36 of the Act were met, which imposes no requirement upon the Tribunal to consider the “best interests” of the child in the sense alleged.

29    To the extent that this ground of appeal can be construed as raising an issue that the mother’s activities were not considered when addressing the complimentary protection criterion, this ground goes nowhere because of the Tribunal’s earlier finding (which has not been demonstrated to be erroneous) that it did not accept that the mother was a supporter, member or office holder in BNP Australia.

30    Finally, although there is a reference in the relevant part of the Tribunal’s reasons to the repealed s 91R3 of the Act (rather than the relevant section currently in force being s 5J(6), which came into force on 18 April 2015), such a typographical error does not amount to any legal jurisdictional error and the correct meaning is clearly reflected by the context and any such minor error was not material: see S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35].

Ground 3

31    Ground 3 is unsustainable. It is evident from the Tribunal’s reasons that it plainly did consider the appellant’s claim she would be abducted, tortured or killed if returned to Bangladesh: TD at [12], [64]-[68], [72]-[73], [80]-[81] and [90]. In reaching the conclusion that the appellant did not face a real chance or real risk of harm, the Tribunal took into account the father’s claims as to why the appellant would be targeted, country information as to the prevalence of abductions and availability of police assistance, and the earlier adverse findings as to the father’s BNP involvement and related matters.

32    Whatever the merits of this unfortunate case, the Tribunal’s reasons demonstrate real, genuine and proper consideration of the claims. Similarly, in relation to particulars (d)-(f) subjoined to Ground 3, the Tribunal did consider the appellant’s claims insofar as they related to her father’s and mother’s alleged BNP involvement. As noted above, the Tribunal’s reasons reflected an active intellectual process in considering the appellant’s claims and submissions and indeed the Tribunal found (contrary to particulars (e)-(f)), that the appellant would be able to access police assistance and would not be targeted: TD at [67]-[69], [81] and [88]. No error has been demonstrated as alleged.

33    The judgment below was delivered ex tempore, although I do not imply any criticism in this regard. Notwithstanding the limitations of the appellate function, I was concerned to ensure that there was a thorough review as to what has happened in this matter, given the fact that the appellant is of tender years, and I was also concerned that her father’s position as litigation guardian was difficult for him to fulfil with skill, given the lack of legal representation in this Court. This review reveals no jurisdictional error of the type necessary to ground relief and, as all grounds of appeal raised by the appellant are without substance, the appeal must be dismissed with costs.

Associate:

Dated:    17 February 2020