Federal Court of Australia

AVI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 800

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as that Court was then known) (FCCA): AVI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3768 (or J).

2    The FCCA Judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 May 2019 (second Tribunal decision) to affirm a decision of a delegate of the responsible Minister to refuse to grant the appellant a Protection (Class XA) visa (protection visa).

Procedural History

3    The appellant (also referred to as AVI17) is a citizen of Bangladesh who arrived in Australia on 22 August 2014 as the holder of a tourist (Subclass 600) visa. On 3 October 2014, the appellant applied for a protection visa. In brief, AVI17 claimed to fear harm in Bangladesh from the Awami League including its student arm, the Chatra League, due to his political involvement with the Jatiyatabadi Chatra Dal and the Bangladesh National Party (BNP). AVI17 claimed that he feared he would be physically assaulted, arrested, and detained on return to Bangladesh on account of his political beliefs.

4    The procedural background to the appeal is as follows:

(a)    AVI17’s application for a protection visa had attached to it an undated statement of claims;

(b)    On 4 June 2015, the appellant attended an interview with a delegate of the Minister. On 5 June 2015, the delegate refused to grant the appellant a protection visa (delegate’s decision). In arriving at this decision, the delegate found AVI17’s claims for protection to be “general in nature and largely unsubstantiated”;

(c)    On 1 July 2015, AVI17 lodged an application for review of the delegate’s decision with the then Refugee Review Tribunal. He enclosed a further statement dated 2 July 2015 and a copy of the delegate’s decision;

(d)    On 13 October 2015, a different delegate of the Minister issued a notification to the Tribunal regarding the disclosure of certain information under s 438(1)(b) of the Migration Act 1958 (Cth) (s 438 certificate). The certificate stated that “information provided to DIAC as an allegation relevant to file number CLF2014/126661” was given in confidence and, in the view of the delegate, for that reason it should not be disclosed to AVI17 or his representative without “appropriate consideration”. The allegation was contained in a letter dated 7 September 2015 addressed to the Department of Immigration and Citizenship and its subject line was “Lodged false refugee” (allegation letter). The allegation letter raised various allegations about the conduct of the appellant and his family in Bangladesh and Australia;

(e)    On 21 October 2016, the appellant was invited to appear before the Tribunal (first Tribunal) to give evidence and present arguments in relation to the issues arising in his case. He appeared on 24 January 2017 with the assistance of his representative and a Bengali interpreter;

(f)    On 2 February 2017, the first Tribunal affirmed the delegate’s decision;

(g)    On 7 August 2017, a Judge of the FCCA made orders by consent quashing the first Tribunal’s decision and requiring the Tribunal to reconsider and re-determine AVI17’s application for review according to law. The Minister conceded that, in circumstances where the existence of the s 438 certificate was not disclosed to AVI17 in the course of the review by the first Tribunal, the first Tribunal denied AVI17 procedural fairness and this conduct constituted a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305;

(h)    On 6 December 2018, a differently constituted Tribunal invited AVI17 to appear before it to give evidence and present arguments in relation to issues arising in his case;

(i)    On 17 January 2019, the Tribunal received a submission from AVI17 dated 14 January 2019 which annexed a media article dated 13 January 2019 from The Diplomat titled “Bangladesh’s Deadly Election”;

(j)    On 25 January 2019, AVI17 appeared before the Tribunal without a representative and with the assistance of a Bengali interpreter; and

(k)    On 29 May 2019, the Tribunal made the second Tribunal decision to affirm the delegate’s decision to refuse AVI17 the protection visa and issued its decision record (DR).

Second Tribunal Decision

5    The Tribunal recounted the appellant’s claims made to it at DR[8]-[18].

6    The Tribunal then stated its concerns about AVI17’s credibility at DR[19]-[29]. In summary, the Tribunal found that AVI17 had failed to satisfactorily account for the discrepancies in his evidence about:

(a)    How often he was attacked. His statement of claims said that he was attacked “a few times” and there was specific reference to an attack by Chatra League activists at a meeting held by his Chatra Dal colleagues in July 2014. His evidence to the delegate was that he was the victim of physical assaults on five occasions, the last occasion being in 2013. His evidence to the Tribunal was that he was attacked on more than 20 occasions. The Tribunal characterised AVI17’s accounts as “widely divergent”: DR[19]-[20];

(b)    When the attacks occurred. AVI17’s evidence to the first Tribunal was that they began when he went to college A in 2010, while he told the Tribunal that they began in 2012 when he went to college B: DR[21];

(c)    When he first fled from his family home and stayed with relatives. His evidence to the Tribunal was that it commenced in 2010 while his statement of claims contained no mention of this and his evidence to the delegate and the first Tribunal was that it commenced in 2013: DR[22]-[24];

(d)    When the police went to his family home and the events that caused him to stay with relatives. AVI17’s evidence to the delegate and the first Tribunal made no mention of the police going to his home before 2010, but his evidence to the Tribunal was that they did. AVI17 told the delegate and the first Tribunal that the police first went to his family home in 2013: DR[25]-[27]; and

(e)    Being of adverse interest to, and threatened by, Jamaat Islami. Those claims were not mentioned in the statement of claims attached to the protection visa application: DR[28].

7    The Tribunal also found that:

(a)    It was highly improbable that, having in effect gone into hiding and made the decision to leave his country and obtain a visa for that purpose, AVI17 would expose himself to risk by continuing with political activities and attending college where he could be located: DR[30]-[33]; and

(b)    It was sceptical of AVI17’s response to the Tribunal’s concerns that his actions were not consistent with someone who genuinely feared harm. He decided to leave Bangladesh in 2013 and obtained a visa to travel to India in early March 2014, yet he chose not to leave Bangladesh until five months later and, even then, he left Bangladesh six weeks after he was granted a visitor visa to come to Australia: DR[34]-[37].

8    The Tribunal then set out its conclusions regarding the appellant’s credibility and claims at DR[38]-[39] as follows:

(a)    Considered cumulatively, the concerns the Tribunal holds about AVI17’s credibility led it to find that he is not a witness of truth and the account of events on which his protection claims are based is false;

(b)    The Tribunal therefore disbelieved AVI17’s claims that:

(i)    he had brothers who were politically active in Bangladesh; false cases were taken out against them and they were threatened and assaulted; and police came to the family home looking for them;

(ii)    he undertook political activities in Bangladesh; people from other parties threatened and attacked him; police in Bangladesh went to his home to apprehend him; and people from other political parties have approached his mother in Bangladesh to locate him; and

(iii)    he undertook political activities in Australia against the Bangladesh government.

9    The Tribunal then stated as follows at DR[40]-[43] (footnote inserted in DR[43]):

40.    The Tribunal has considered written submissions made by the applicant dated 2 July 2015 and 14 January 2019. In these submissions, the applicant repeats the account of events on which his protection claims are based. He then makes assertions about the treatment of members and supporters of opposition parties in Bangladesh. With the latest submissions, the applicant encloses a media report about political violence in view of elections held in Bangladesh in December 2018. These submissions do not assist the applicant because they are predicated on the basis that the applicant supported an opposition party in Bangladesh. For the reasons given above, the Tribunal disbelieves those claims and so these submissions do not assist him.

41.    In his submissions of 14 January 2019 the applicant said that he suffers from post-traumatic stress disorder. To the observation of this Tribunal, at the hearing, the applicant was able to comprehend the Tribunal’s questions and respond to them. He had a meaningful opportunity to participate in the hearing. Further, because he is not a witness of truth, the Tribunal disbelieves his assertion about his mental state.

42.    There is no credible evidence before the Tribunal that the applicant suffered harm in Bangladesh. There is no credible evidence that anyone in Bangladesh seeks to harm him. There is no credible evidence before the Tribunal as to why the applicant left Bangladesh and why he does not want to return there. For all of these reasons, the Tribunal finds that the applicant does not hold a well-founded fear of persecution based on a convention ground. For those same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

43.    Finally, the Tribunal records that, pursuant to s.424AA of the Act, the Tribunal invited the applicant to comment on or respond to information received by the Department to the effect that the applicant has applied for protection on false grounds. [This information appears at folio 36 of the first Tribunal file. The information was the subject of a certificate issued by the Department pursuant to s.438(1)(b) of the Act.] The applicant elected to comment on this information at the hearing and did not seek extra time. He denied the allegation. The Tribunal told the applicant that it would disregard this information as its source was unknown to the Tribunal and the veracity of that source could not be tested by the Tribunal. While the Tribunal takes that stance with respect to that information, for the reasons given above, the Tribunal finds that the account of events on which the applicant’s protection claims are based is false.

FCCA decision

10    I note that the FCCA Judge dispensed with the requirement for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) and the matter proceeded as a final hearing. The Minister’s legal representative appeared at the hearing and the appellant appeared in person. The FCCA Judge found that only the first of the four grounds of AVI17’s application for review was arguable. The FCCA Judge gave reasons for his findings on each of the four grounds which are addressed below. The application for review was dismissed with costs.

The appeal

11    The appellant relies on six grounds of appeal. The first four grounds reflect the four grounds of review which were before the FCCA Judge with slight variation.

12    The Minister accepts that the fifth and sixth grounds were sufficiently raised before the FCCA Judge such that leave is not required to allow the appellant to raise them on the appeal.

13    Communications at the hearing were assisted by an interpreter in the Bengali and English languages.

14    The Minister filed submissions and appeared by his legal representative who made oral submissions. The appellant filed submissions and appeared without legal representation. The appellant made brief oral submissions addressing the consequences he fears upon return to Bangladesh and asked that the Court remit the matter back to the Tribunal. He otherwise relied on his written submissions.

Ground 1

15    The first ground of appeal is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold that the Administrative Appeals Tribunal (hereinafter referred as “the Tribunal”) denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183.

Particulars:

a.    The delegate of the Minister issued a notification pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) on 13 October 2015 and the existence of the notification was not disclosed to the applicant in the course of the review by the second respondent;

b.    The document subject to the notification was relevant, or potentially relevant, to the issues on the review by the Tribunal;

c.    On 2 February 2017, the Tribunal differently constituted affirmed the decision of the delegate dated June 2017;

d.    Previously on 7 August 2017, by consent, the Federal Circuit Court in (SYG574/2017) set aside that decision and remitted back to the Tribunal. This was due to the non-disclosure of a certificate issued by the delegate pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) where Federal Circuit Court Judge Smith said the first respondent (Minister) concedes the second respondent (Tribunal) denied the applicant procedural fairness and that is a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183;

e.    The Tribunal said “ ..... it would disregard this information as its source was unknown to the Tribunal and the veracity of that source could not be tested by the Tribunal. While the Tribunal takes that stance with respect to that information, for the reasons given above, the Tribunal finds that the account of events on which the applicant’s protection claims are based is false.: at [paragraph 43];

f.    A fair reading of the Tribunal’s decision dated 29 May 2019; the said notification document had influenced the Tribunal said decision in disbelieving on several of his claims for protection.

g.    The High Court unanimously held that the fact of a notification to the Tribunal that s 438 of the Migration Act 1958 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. By majority, the High Court held that a breach by the Tribunal of that obligation will result in jurisdictional error if, and only if, the breach is material, in the sense that the breach deprives the applicant of the possibility of a successful outcome. By majority, the High Court also held that an invalid notification will result in jurisdictional error if, and only if, the notification is material. In CQZ15, the Federal Court was correct to remit the matter to the Federal Circuit Court. The SZMTA (Case No: M75/2018) be distinguished from the present appeal on facts as the applicant has been deprived of a of a successful outcome on remittal to the Tribunal.

16    In relation to the first ground, the FCCA Judge noted that it was remarkable that the Tribunal had apparently succeeded in repeating the error the subject of previous FCCA proceedings (in relation to the first Tribunal decision) which the Tribunal had noted in its decision record. That error was to fail to inform AVI17 of the existence of the s 438 certificate. The FCCA Judge remarked that it may seem artificial to require that obligation to be fulfilled in circumstances where AVI17 “was plainly aware of the certificate” because it featured in the previous FCCA proceedings but the Minister conceded that the Tribunal erred in apparently not disclosing the certificate: J[22].

17    The FCCA Judge found that, on its face, the s 438 certificate was valid because it is based on an obligation of confidence in relation to a person who provided information to the Minister’s Department in the expectation that it would be treated that way. Noting that the allegation letter covered by the s 438 certificate contained some “wild allegations”, the FCCA Judge remarked that “the nature of those allegations would cause a cautious decision-maker to treat the allegations with circumspection”: J[23].

18    After setting out DR[43] in full (at J[24]), the FCCA Judge found (at J[25]-[27]) that:

(a)    The Tribunal correctly treated the s 438 certificate as valid;

(b)    The Tribunal correctly considered its discretion whether to disclose the information covered by the s 438 certificate and did disclose the substance of the information in the allegation letter to the appellant under s 424AA of the Migration Act;

(c)    The appellant then elected to comment on the information at the hearing and denied the allegations in the allegation letter;

(d)    The Tribunal told the appellant that it would disregard the information because the source was unknown and the Tribunal was unable to test the veracity of that source;

(e)    The Tribunal’s adverse credibility findings were reached on the basis of a multitude of inconsistencies identified in AVI17’s evidence for which he did not provide a satisfactory explanation. Taking into account the Tribunal’s wide-ranging credibility concerns in relation to AVI17’s claims, plainly the outcome did not turn on either the failure to disclose the s 438 certificate or the information in the allegation letter covered by it. Rather, it turned on the Tribunal’s adverse credibility concerns;

(f)    There is no basis to infer that the Tribunal was influenced by or otherwise relied on the information in the allegation letter behind the s 438 certificate; and

(g)    In those circumstances, the failure of the Tribunal to disclose the existence of the s 438 certificate to AVI17 was not material because it could not have realistically deprived AVI17 of the possibility of a successful outcome, citing Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at [2]–[3] (Bell, Gageler and Keane JJ).

19    In relation to the first ground, the appellant submitted that he reiterated that the Tribunal was substantially influenced and relied on the information behind the s 438 certificate (that is, the allegation letter) and that he believes that that could, realistically, have deprived him of a successful outcome.

20    Despite the appellant’s contrary view, and having regard also to the facts that the appellant did, in fact, know of the existence of the s 438 certificate and was given an opportunity to comment on the information in the allegation letter and did so, I perceive no appellable error in the FCCA Judge’s findings and reasons for those findings summarised at [17] and [18] above. I find that the first ground of appeal is not made out.

Ground 2

21    The second ground of appeal is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold where the political and security situation in a country is fluid, it is important for the decision-maker to consider the situation for the applicant into the reasonably foreseeable future on his or her return to the receiving country. “Where the political situation in a country is fluid, political developments concerning human rights and civil rights can move in different direction, including backwards by deteriorating ...”

Particulars:

a.    Human Rights Watch World Report 2018 states “Bangladesh security forces particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in “gunfights,” leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.

b.    There is independent country information available which indicates that the security situation in Bangladesh is volatile, that there is sometimes politically motivated violence there and that there are often clashes between members and supporters of rival parties and law enforcement agencies. The current Awami League government, senior members of the BNP face a high risk of politically motivated arrest and violence both from security forces and ruling party activists: see DFAT Country Information Reports, Bangladesh, 2 February 2018, 5 July 2016, 20 October 2014”

c.    The DFAT Country Information Report Bangladesh 2 February 2018 said “The security in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next nation elections in late 2018 or early 2019”

d.    The Tribunal failed to consider and/or address the written submissions dated 14 January 2019 of the applicant of the above information constitute an error in the reasoning process of the Tribunal which is a jurisdictional error. See AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; Soliman v University of Technology, Sydney [2012] FCAFC 146. In another case last year, the Full Federal Court found that the reasons did not show a sufficient grappling with the issues in the matter. (See ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174).

22    The FCCA Judge noted (at J[29]) that, in the second of the review applications, the appellant detailed various country information about the security situation in Bangladesh and contended that the Tribunal failed to consider and/or address his submissions dated 14 January 2019 such that it fell into jurisdictional error. His Honour noted DR[40] (see [9] above) and said that:

(a)    Contrary to AVI17’s contention, the Tribunal expressly considered his written submissions dated 2 July 2015 and 14 January 2019;

(b)    The Tribunal found that those submissions did not assist AVI17 because they were predicated on his support for an opposition party in Bangladesh which the Tribunal did not believe; and

(c)    The Tribunal’s conclusion was open to it because it had formed the view that AVI17 was not a witness of truth and the account of events on which his claims were based was false.

23    At J[30], the FCCA Judge found that, to the extent that the second ground may be construed as a challenge the Tribunal’s adverse credibility findings, the findings were open on the material and made in a procedurally fair manner and on a logical, probative basis. His Honour cited the summary of principles relating to legal unreasonableness set out in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ). His Honour noted that the Tribunal’s adverse credibility findings were squarely based on AVI17’s written and oral evidence which the Tribunal variously assessed to be inconsistent, highly improbable and implausible; having made the findings that it did, it was open to the Tribunal to disbelieve AVI17’s claims.

24    The appellant submitted (as written):

I reiterate the Tribunal formed a view adverse to my claims a failure to compare my claims with the background of the security situation, the political persecution and the police brutality prevailing in Bangladesh. In any event restricting that the Tribunal's conclusion was reasonably open to the Tribunal that it had formed the view that the I was not a witness of truth and that the account of events on which my protection claims were based was false is unfair and a judicial error. The Tribunal’s adverse credibility findings made not in a procedurally fair manner and had no logical and probative value.

25    The appellant’s claims were based on a fear of harm due to his political beliefs and activities, a claim which the Tribunal did not accept. It is plain from the content of DR[40] and [41] that the Tribunal read and considered the content of his submissions dated 2 July 2015 and 14 January 2019 and was therefore aware of the country information on which the appellant relied. The focus of that country information was the risk faced by political leaders and activists and was therefore not relevant once the Tribunal did not accept the appellant’s claims regarding his political beliefs and activities. I consider that the Tribunal’s conclusions with respect to the appellant’s credibility were open to it for the reasons that it gave and that it reached those conclusions based on probative material, logically and in a procedurally fair manner. I perceive no appellable error in the FCCA Judge’s findings summarised at [22] and [23] above. This ground of appeal should be rejected.

Ground 3

26    The third ground of appeal is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold the Tribunal failed to consider the Country Information which was crucial to the applicant’s claims of protection in Australia.

a.    Human Rights Watch World Report 2018 states “Bangladesh security forces- particularly the Detective Branch of the police, Bangladesh Border Guards (BGP), the Directorate General Forces Inspectorate (DGFI), and the Rapid Action Battalion (RAB)-have a long history of enjoying impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extra judicial killings, a pattern that did not abate in 2017. Law enforcement authorities continued to arrest opposition activities and militant suspects, holding them in secret detention for long periods before producing some in court. Several others, according to security forces, were killed in “gunfights,” leading to concerns over extrajudicial killings. At time of writing, scores remained victims of enforced disappearances.

b.    Since the start of the election campaign on December 10, opposition leaders in Bangladesh have come under attack almost on a daily basis. According to local and international media, some campaigning opposition candidates have been publicly beaten by ruling party cadres or sent to jail on false accusation. As many as 21,000 opposition leaders and activists were arrested since the announcement of the election schedule. Ruling party miscreants torched opposition campaign offices, attacked female opposition contestants and accosted a motorcade including Hossain. There are allegations of rampant violation of electoral codes. (Article by Niaz Asadullah and Antonio Savoia dated December 24, 2018 in The Diplomat).

c.    failing to consider the said Country Information where the failure is legally unreasonable.

27    At J[31], the FCCA Judge observed that, in this ground, AVI17 detailed various country information which bears some resemblance to the country information provided in his written submissions to the Tribunal and that he alleged that the failure of the Tribunal to consider that information was legally unreasonable. The FCCA Judge found that:

(a)    Contrary to AVI17’s contention, the Tribunal expressly considered his written submissions dated 2 July 2015 and 14 January 2019 and found that they did not assist him;

(b)    For the same reasons given above in relation to the second ground, the Tribunal’s approach does not disclose that it fell into jurisdictional error, either in relation to the way in which it assessed the information, or in relation to the adverse credibility findings which underpinned its assessment; and

(c)    Generally it must also be observed that the choice and assessment of the weight to be given to country information is a matter for the Tribunal.

28    In relation to the third ground of appeal, the appellant submitted as follows:

I respectfully reiterate the failure of the Tribunal to consider the country information was legally unreasonable. Further I state the Tribunal’s approach to the country information does disclose that the Tribunal fell into jurisdictional error in assessing the way it assessed the information formulating a decision failing to give the correct weight to the correct country information. The choice of the Tribunal to pick and choose the country information in support of formulating its adverse decision was unfair.

29    It might be observed that the Tribunal did not pick and choose between country information. Rather, it did not find it relevant once it disbelieved the appellant’s claims based on political opinion and activities. I perceive no appellable error in the FCCA Judge’s approach or findings in relation to this ground. This ground of appeal should be rejected.

Ground 4

30    The fourth ground of appeal is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold the Tribunal is obliged to take into account the possibility that the applicant was imputed as an BNP supporter or as a person with BNP links before he left Bangladesh and the applicant’s family has ongoing links with the BNP. If the delegate had taken this possibility into account, it may have affected the delegate's assessment of whether the applicant faces a real chance of persecution on his return to Bangladesh.

Particulars:

a.    The harm that the applicant would face if he were to return to Bangladesh is due to the essential and significant reasons of his real or imputed political opinion as supporter of BNP and is motivated and deliberate conduct of his persecutors and it amounts to systematic and discriminative conduct: see Ram v MIEA (1997) 190 CLR 225; and MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].

b.    The Tribunal failed to hold that the delegate had not taken this possibility and that had affected the real chance of persecution of the applicant on if he were to return to Bangladesh.

31    The FCCA Judge observed (at J[32]) that by the fourth ground AVI17 unclearly contended that the Tribunal failed to find that the delegate had not taken the possibility of his BNP links into account. His Honour found that the Tribunal was under no obligation to make any findings about the conduct of the delegate and, furthermore, any failings of the delegate are not within the jurisdiction of the FCCA.

32    At J[33], the FCCA found that the Tribunal was plainly cognisant of AVI17’s claims and evidence and its findings were sufficiently dispositive of those claims. His Honour noted that, having found that the appellant claimed protection on the basis that he was a supporter of the Chatra Dal, the Tribunal did not believe AVI17’s claims that he had brothers who were politically active in Bangladesh or that he undertook political activities in Bangladesh or Australia. The FCCA Judge found that in those circumstances, the Tribunal did not need to make a finding regarding AVI17’s BNP links because the factual premise on which the contention rested was rejected, citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ).

33    In relation to the fourth ground, the appellant submitted that:

I state it was unnecessary for the Tribunal to make a specific finding on the issue because of the Tribunal was proceeding to make an adverse finding on my claims. However the Tribunal had not given sufficient importance in taking cognisance of my claims and evidence and the Tribunal’s findings were not sufficiently dispositive of my claims.

34    The appellant’s submission in essence seeks merits review of the Tribunal’s decision. I perceive no appellable error in the FCCA’ Judge’s approach or findings in relation to Ground 4. This ground of appeal should be rejected.

Ground 5

35    The fifth ground is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold the Tribunal’s decision is vitiated by reason of the Tribunal having proceeded on an invalid certificate.

a.    The Minister accepts that the certificate is invalid, and further, its existence was not disclosed to the applicant by the Tribunal;

b.    The Tribunal’s statutory obligation is to review the delegate’s decision (s.414 of the Migration Act 1958 (the Act). The Tribunal is required to consider all claims expressly made by an applicant, or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184);

c.    In addition, and/or alternatively to Ground 1, the Federal Circuit Court Judge Driver failed to hold that the Tribunal committed a breach of Procedure.

d.    The Tribunal did not disclose the existence of the s 438 certificate to the applicant;

e.    This matter is relevantly indistinguishable from MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, at least insofar as the first s.438 certificate is concerned. The Minister did not seek special leave to appeal from that decision. However, the Minister formally submitted in the present proceeding that MZAFZ was wrongly decided. Clearly, MZAFZ was binding on the Federal Circuit Court.

f.    Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 and the MZAFZ for the reasons the Federal Circuit Court would have remitted to the Tribunal for redetermination.

g.    The law of legal unreasonableness required an evident and intelligible justification for the Authority’s decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [82]).

36    The appellant’s submission in relation to this ground is that he reiterates the particulars of the ground.

37    The Minister submitted that:

(a)    Contrary to particular a., the Minister does not accept that the certificate was not valid;

(b)    The FCCA Judge was correct to hold (at J[25]) that the s 438 certificate was valid and that the Tribunal treated it as valid; and

(c)    The FCCA Judge was correct to hold that any failure to disclose the s 438 certificate was not material.

38    This ground is not made out. I perceive no error in the FCCA Judge’s finding that the s 438 certificate was valid having regard to the fact that it sought to protect a confidential communication regarding AVI17’s protection visa application.

39    The materiality of a failure to disclose to an applicant a notification made to the Tribunal under s 438 of the Migration Act must turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with that information in making its decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [63] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

40    Having regard to the circumstances described at [18(a) to (f)] above, the FCCA Judge’s finding at [18(g)] was both available and correct. This ground of appeal should be rejected.

Ground 6

41    The sixth ground of appeal is as follows (as written):

The Federal Circuit Court Judge Driver failed to hold that the Tribunal’s decision is vitiated by fact-finding that is objectively unreasonable.

a.    The Federal Circuit Court failed to hold the Tribunal did not approach the level of legal unreasonableness discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18.

b.    The Tribunal is required to consider all claims expressly made by an applicant, or clearly arising in the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).

c.    The Tribunal differently constituted after another hearing again affirmed the decision of the delegate. This certificate was purportedly issued by a delegate of the Minister under s 438(1)(a) the existence of the certificate in the period between the quashing of the said initial decision of the Tribunal and the conduct of the of the second hearing. The certificate had been notified to the Tribunal in purported compliance with s 438(2)(a) but had not been disclosed to the applicant. The Minister conceded that the certificate was invalid, from which it followed that the notification also invalid.

d.    It was possible that the material might have been supportive of the applicant’s application for protection visa, and so should have been disclosed as part of the hearing obligation s 425 of the Migration Act 1958.

e.    Acting on an invalid certificate meant that the Tribunal did not properly undertake the review task that statute required of it, with the result that the Tribunal had made a jurisdictional error.

f.    The Tribunal rejected the claims for protection in Australia because of a lack of credibility then clear reasons must be given. Ambiguous statements that do not amount to an outright rejection of the claimant’s evidence, but only “cast a nebulous cloud over its reliability,” are not sufficient to discount evidence.

42    In relation to the sixth ground of appeal, the appellant submitted as follows:

I reiterate the Tribunal engaged in a fact finding mission which is objectively unreasonable. I also reiterate that the Tribunal did not approach the level of legal unreasonableness and the particulars in the Notice of Appeal.

43    Legal unreasonableness can arise in consequence of another species of recognised error (for example, failure to take into account a mandatory consideration) or on a purely outcome/result focused basis: see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [60] (Allsop CJ, Griffiths and Wigney JJ).

44    These particulars do not identify how the legal unreasonableness arose out of the Tribunal’s fact finding. Any complaint based on the second Tribunal’s failure to disclose the s 438 certificate, the invalidity of the s 438 certificate (which I note that the Minister does not concede) or the Tribunal’s credibility findings should be rejected for reasons already given.

45    On the assumption that it is the appellant’s complaint that the Tribunal failed to consider country information, that complaint should be rejected for reasons already explained. To be explicit, it is plain that the Tribunal read the submissions dated 2 July 2015 and 14 January 2019 which contained country information on which AVI17 relied, but neither that information nor (as noted by the Tribunal at footnote 4) country information issued by the Department of Foreign Affairs and Trade was relevant once the Tribunal did not believe his claims concerning his political opinion and activities. The Tribunal did not “cast a nebulous cloud” over the reliability of AVI17’s evidence, it made its credibility findings in detail, logically and clearly.

46    The appellant has not made out any jurisdictional error by the Tribunal or appellable error by the FCCA Judge based on the sixth ground. This ground of appeal should be rejected.

Disposition

47    The appeal should be dismissed with costs.

Associate:

Dated:    12 July 2022