Federal Court of Australia

AYB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 442

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 20 November 2019 (Application) be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or taxed, of the Application.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for an extension of time and leave to appeal from orders made on 23 October 2019 by the Federal Circuit Court of Australia as it then was (now the Federal Circuit and Family Court of Australia) dismissing the applicant’s application for judicial review of a decision of the second respondent (Tribunal) with costs: see AYB19 v Minister for Immigration [2019] FCCA 3034. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2    The order dismissing the applicant’s application for judicial review was made at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (now repealed) (FCC Rules). Accordingly, the order is interlocutory and the applicant requires leave to appeal from it: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    The applicant had 14 days from the date on which the Circuit Court made the order dismissing his application to file his application for leave to appeal: see r 35.13 of the Federal Court Rules 2011 (Cth). Thus any application for leave to appeal was required to be filed by 6 November 2019. However, the applicant did not file his application until 20 November 2019 which was 28 days after the Circuit Court made its order and 14 days out of time. Accordingly, the applicant also requires an extension of time.

BACKGROUND

4    The following background is taken from the reasons of the primary judge.

5    The applicant is a citizen of Bangladesh. He arrived in Australia on 12 May 2015 as the holder of a visitor’s visa.

6    On 22 June 2015 the applicant lodged an application for a protection visa. The applicant claimed that as a homosexual he feared harm in Bangladesh from homophobes or religious fanatics.

7    On 4 March 2016 a delegate of the Minister refused to grant the applicant a protection visa. The applicant sought review of the delegate’s decision by the Tribunal.

8    On 6 July 2018 the applicant provided documents to the Tribunal including an Outward Remittance document, his partner’s identity card (which was not translated), a Sydney Gay and Lesbian Mardi Gras membership card and a medical document in English and Bengali.

9    On 19 September 2018 the applicant attended a hearing before the Tribunal at which he provided further documents including tickets to Mardi Gras events and country information. After the hearing the applicant provided the Tribunal with financial documents and additional photographs.

10    On 18 December 2018 the applicant attended a second hearing before the Tribunal. Following that hearing the applicant provided the Tribunal with a translation of a letter said to be from his local mosque to his landlord.

11    On 24 January 2019 the Tribunal invited the applicant to comment on translations obtained by it of two documents: the applicant’s lease agreement and a police “General Diary” document.

12    On 14 February 2019 the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

13    The Tribunal first summarised the applicant’s claims and evidence in detail, including the information provided to the Tribunal prior to, during and after the first hearing and at and after the second hearing, as well as relevant country information.

14    Next the Tribunal considered the applicant’s claims in light of the evidence. It:

(1)    found that the applicant’s evidence about his sexual orientation was unreliable and contradictory. His account of his sexual orientation and his life as a gay man differed in significant ways at various stages of his application. The Tribunal set out in detail why it had formed its view, highlighting aspects of the applicant’s evidence which it considered to be inconsistent and/or implausible;

(2)    rejected the applicant’s claim to have been harassed and tortured at his work place by colleagues, forcing him to leave his employment;

(3)    did not accept the applicant’s claim concerning the local mosque committee in Dhaka and its treatment of him and his partner. In doing so it found that the letter in Bengali submitted by the applicant, which was said to be a notice from the mosque committee terminating his lease, was not genuine;

(4)    rejected the applicant’s claim, made for the first time at the second hearing, that he was attacked and beaten by the Islami Chhatra Shibir in Dhaka in about June 2014 and found the documents submitted in support of that claim to be vague and to include inconsistencies; and

(5)    accepted that the applicant had a Mardi Gras membership in 2017 and had attended a Mardi Gras parade as a volunteer and some other events but, in view of its findings that the applicant was not a gay man together with his lack of clear and accurate knowledge about the organisation and the events he attended, was not satisfied that the applicant had engaged in such conduct other than for the purpose of strengthening his claim to be a refugee. Accordingly the Tribunal disregarded this conduct under s 5J(6) of the Migration Act 1958 (Cth) for the purpose of determining whether the applicant had a well-founded fear of persecution for the purposes of s 5J(1)(a) of the Act.

15    Commencing at [78] of its decision record under the heading “Fear of Harm in Bangladesh” the Tribunal referred to its finding that the applicant’s claims to be gay and, as a result, to have suffered attacks and abuse in Bangladesh was not credible. It noted that it had accepted that the applicant attended and participated in some activities organised by the Mardi Gras and that, while it had disregarded those activities in relation to its determination of the refugee definition, s 5J(6) of the Act does not apply to the Tribunal’s determination of protection obligations to the applicant under the complementary protection criterion.

16    The Tribunal formed the view that the applicant’s attendance at the Mardi Gras and related activities would not mean that there was a real risk that he would be subjected to harm on his return to Bangladesh. At [79]-[80] of is decision record it made the following findings:

79.    The Tribunal has accepted that the applicant attended and participated in some activities organised by the Sydney Gay and Lesbian Mardi Gras. However under s.5J(6) of the Act the Tribunal is to disregard this activity in relation to its determination of the refugee definition. This section of the Act does not apply to the Tribunal’s determination of protection obligations to the applicant under the complementary protection criterion.

80.    There is no indication before the Tribunal that anyone in Bangladesh is aware that the applicant participated in some events with the Sydney Gay and Lesbian Mardi Gras. In view of the finding that the applicant is not a gay man there is no reason for his activity in Australia to give rise to any fear of harm on his return to Bangladesh.

17    The Tribunal then referred to the applicant’s statement included in his protection visa application that he belongs to the Islamic religion but does not have faith in it and noted that he did not raise any claims to fear serious or significant harm because of his lack of faith. The Tribunal observed that the applicant has lived in Bangladesh without any indication that he has suffered harm or threat of harm because of his lack of faith and, on the information available to it, was not satisfied that there a real chance that the applicant would face serious or significant harm in Bangladesh because he does not have faith in the Islamic religion.

18    The Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Bangladesh as defined in s 5J(1) of the Act or that there is a real risk that the applicant will be subjected to significant harm on return to Bangladesh.

19    The Tribunal was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act or that the applicant met the criterion in s 36(2)(aa) of the Act.

The circuit Court decision

20    On 7 March 2019 the applicant filed an application for judicial review in the Circuit Court in which he raised the following grounds:

Ground One:

The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars

In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act 1958 (Cth), the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

The Administrative Appeals Tribunal denied procedural fairness to the applicant.

21    The primary judge made some general observations about the claims made by the applicant to the Tribunal and his presentation of the evidence in support of it, expressing a general feeling of unease about the Tribunal’s findings. His Honour noted that, although a matter beyond the scope of the proceeding, the case merited further consideration by the Minister and his Department: AYB19 at [29]-[30].

22    The primary judge then considered the applicant’s oral submissions made at the hearing which concerned allegations that the Tribunal had failed to deal properly with several of the documents he had provided to it. The primary judge was satisfied, in relation to each document raised by the applicant, that the Tribunal had considered it or, in relation to a particular document that the applicant had only provided in Bengali, that his Honour could not draw any conclusion about its significance. The primary judge was not persuaded by the applicant’s oral submissions that he had an arguable case of jurisdictional error by the Tribunal: AYB19 at [31]-[37].

23    The primary judge turned to address each of the grounds raised by the applicant.

24    His Honour found that ground 1 did not reveal any error on the part of the Tribunal. At [40], after summarising the Tribunal’s findings relevant to its consideration of the complementary protection criterion, the primary judge reasoned:

The Tribunal’s factual findings comprehensively dealt with the claims put forward by the applicant and it additionally found that the applicant would not face serious or significant harm for reason of his religion. Furthermore, the Tribunal correctly made findings under the complementary protection criterion in respect of conduct which it disregarded under s.5J(6) of the Migration Act. Ground 1 is not arguable.

25    The primary judge observed that ground 2, which alleged that the Tribunal denied the applicant procedural fairness, was not particularised. His Honour noted that the applicant was invited to two hearings; that the Tribunal’s decision was based on the same dispositive issues as that of the delegate but nonetheless the Tribunal discussed those issues at the hearings; there was no information that enlivened the Tribunal’s obligations under s 424A of the Act; and the Tribunal put information to the applicant pursuant to s 424AA of the Act: AYB19 at [41].

26    Finally, the primary judge considered an issue raised by the Minister concerning a purported certificate issued pursuant to s 438 of the Act. His Honour noted that the certificate was invalid, that its existence was not disclosed to the applicant and that, by failing to do so, the Tribunal breached its procedural fairness obligations or, if the Tribunal did act on the invalid certificate, it followed a procedure contrary to the law. However, his Honour found that neither breach amounted to a jurisdictional error because neither was material in that they did not deprive the applicant of the possibility of a successful outcome. At [49]-[50] his Honour said:

49.    The materials subject to the certificate were not relevant to the applicant’s claims for protection nor to the issues being considered by the Tribunal. Therefore:

a)    if the Court were to find that the Tribunal acted on the invalid certificate, there is no realistic possibility that the Tribunal’s decision could have been different if the material covered by the certificate had been taken into account; and

b)    in relation to the failure by the Tribunal to disclose the existence of the certificate to the applicant, there is no realistic possibility that the Tribunal’s decision could have been different if the certificate had been disclosed so as to allow the applicant a full opportunity to make submissions about it.

50.    In short, the certificate is plainly invalid. It was not disclosed to the applicant by the Tribunal, and it should have been. Having regard to the documents purportedly covered by the certificate, that omission was, however, not material to the review.

the proceeding in this court

27    The applicant’s application for an extension of time and leave to appeal includes the following two grounds:

Ground One:

The Administrative Appeals Tribunal has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars:

In dealing with the Applicant's claims under Section 36(2)(aa) of the Migration Act 1958 (Cth), the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

The Administrative Appeals Tribunal denied procedural fairness to the applicant.

Those grounds are identical to the grounds relied on by the applicant in his application before the Circuit Court.

28    The application for an extension of time and leave to appeal was accompanied by a draft notice of appeal, which once again replicates the grounds in the application for judicial review filed in the Circuit Court, and an affidavit sworn by the applicant in which he states (as written):

1.    I am the Appellant and I am authorised to make this affidavit.

2.    The information provided to this honourable court are true to the best of my knowledge.

3.    On the 20 November 2019, I attended the registry and been advised that I am out of time and need to apply for extension of time and leave to appeal the decision of the Federal Circuit Court of Australia.

29    The applicant has not filed any written submissions in support of his application. At the hearing he made brief oral submissions. He submitted that he filed his application for leave to appeal late because he was ill and that he could provide a medical certificate if the Court required it. In relation to his proposed grounds of appeal, the applicant submitted that the Tribunal “had not verified” his documents and that the primary judge had not required the Tribunal to do so and that the Tribunal had not properly applied the complementary protection criterion.

Legal principles

30    In exercising its discretion to grant an extension of time the Court will ordinarily consider the length of, and explanation for, the delay; any prejudice to the respondent, although its absence, without more, does not of itself justify the grant of an extension; and the merits of the substantive appeal. The latter should be examined at an impressionistic level, without descending “into a fuller consideration of the arguments” raised by the parties: see Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]-[21].

31    In exercising its discretion to grant leave to appeal the Court will consider whether the judgment in question is attended with sufficient doubt to warrant its reconsideration by a Full Court; and, on the assumption that the judgment is wrong, whether substantial injustice would result if leave was refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

Consideration

32    In his affidavit filed with his application for an extension of time and leave to appeal the applicant does not set out the reasons for his delay. He asserted at the hearing that the delay was due to illness. However, there was no evidence before me to support that assertion. While I note that the applicant is self-represented, it has been some two years since he filed his application in this Court allowing him ample time to put on any necessary evidence in support of that assertion. Putting that to one side, it is open to infer from the applicant’s statement in his affidavit that on 20 November 2019 he was informed that he required an extension of time, that he was unaware that the orders made by the primary judge were interlocutory which, in turn, affected the time within which any application had to be filed. In circumstances where the applicant is not legally represented that is understandable.

33    The Minister does not say that he would suffer any prejudice that could not be cured by a costs order should an extension of time be granted.

34    The question of merit of the proposed grounds of appeal is common both to the application for an extension of time and for leave to appeal and will therefore be determinative of the applications.

35    As I have already observed at [27] above the applicant’s proposed grounds of appeal simply repeat the grounds raised in the court below. They do not allege any error on the part of the primary judge nor particularise how it is said that his Honour may have fallen into error in considering those grounds.

36    Having examined the reasons of the primary judge and of the Tribunal I can discern no error on his Honour’s part in addressing the grounds that were before him and concluding that they did not demonstrate an arguable case of jurisdictional error by the Tribunal.

37    By ground 1 the applicant contended that the Tribunal failed to properly apply s 36(2)(aa) of the Act in that it failed to disaggregate the statutory formulae under that section. His Honour observed that the Tribunal addressed the complementary protection criterion in s 36(2)(aa) of the Act at [78]-[86] of its decision record.

38    In doing so the Tribunal took into account the applicant’s conduct in Australia in attending the Mardi Gras but found that, in light of its finding that the applicant was not gay, his activity in Australia would not give rise to any fear of harm on his return to Bangladesh. The Tribunal also found that, even if the applicant’s activity became known to people in Bangladesh, the information before it did not indicate there was any real risk of him being subjected to significant harm in Bangladesh because the applicant could explain the purpose of his participation and disabuse suspicions that he is gay. The Tribunal also found that the conduct was “quite low level and sporadic”.

39    While he did not claim to fear harm from his lack of faith in his Islamic religion, the Tribunal considered whether the applicant would nonetheless face serious or significant harm as a result. It found that he would not.

40    The Tribunal therefore concluded that it was not satisfied that there was a real risk that the applicant would be subjected to significant harm on return to Bangladesh and that he was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. There was, as the primary judge concluded, no arguable error in the Tribunal’s approach.

41    By the second proposed ground of appeal the applicant alleges that the Tribunal denied him procedural fairness. As the primary judge observed this ground is not particularised. Notwithstanding that his Honour considered the Tribunal’s reasons and the course of the hearing before it as disclosed in those reasons. His Honour concluded that there was no such error as alleged. There is no arguable error in the primary judge’s approach.

42    The applicant’s submissions to the effect that the Tribunal failed “to verify” his documents seem to echo submissions he made to similar effect before the primary judge where he contended that particular documents, the police “General Diary”, the mosque notice and a Mardi Gras document were not dealt with or not dealt with properly by the Tribunal. The primary judge considered whether that was so but found that the Tribunal considered each of those documents referring to those parts of the Tribunal’s decision record where it did so: AYB19 at [31]-[33]. The primary judge considered and properly dismissed the applicant’s submissions. There is no arguable error in his Honour’s approach.

conclusion

43    Given the lack of merit in the applicant’s proposed grounds of appeal his application for an extension of time and leave to appeal should be dismissed. As he has been unsuccessful in his application the applicant should pay the Minister’s costs as agreed or taxed.

44    I will make orders accordingly.

Associate:

Dated:    28 April 2022