Federal Court of Australia

BBV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1227

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    This is an appeal from a decision of the (then) Federal Circuit Court of Australia (FCCA) made on 11 March 2020: BBV17 v Minister for Immigration & Anor [2020] FCCA 674 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the second respondent (AAT), made on 23 February 2017. The AAT had affirmed a decision of the delegate of the first respondent (Minister), made on 5 June 2015, refusing to grant the appellant a protection visa (subclass 866) pursuant to s 65 of the Migration Act 1958 (Cth).

2    This Court’s jurisdiction is very confined. At hearing the appellant sought to adduce fresh evidence as to his very difficult personal circumstances which included documents relating to his and his wife’s health concerns and the fact that he has three sons in school in Bangladesh. He appealed to this Court for its assistance in allowing him to remain in Australia. Unfortunately, this Court does not have the power to take those matters into account nor to make orders of the kind the appellant seeks. Its powers are very limited. This Court has jurisdiction to hear this appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The Court must determine whether the FCCA was correct to find that the decision of the AAT was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541.

3    This appeal concerned whether the AAT had erred in purportedly failing to disaggregate the statutory formulae under s 36(2)(aa) from its consideration of the protection visa application under s 36(2)(a) and whether the AAT had denied the appellant procedural fairness. For the reasons set out below, I dismiss the appeal.

Background

4    The appellant is a citizen of Bangladesh. He last arrived in Australia on 6 August 2014.

5    The appellant lodged an application for a protection visa on 30 October 2014, claiming he feared persecution in his home country because of his political opinion. The appellant claims that he was a member of the Bangladesh Nationalist Party (BNP) and stood for election on 22 May 2011. As a result of his political involvement, the appellant claims he and his family have been threatened, that he has been implicated in a murder by his political opponents and that a false charge was filed against him. The appellant claims that he fears that if he returns to Bangladesh, members of the Awami League (AL) would harass and attack him.

The delegate’s decision

6    The appellant attended an interview with the delegate on 2 June 2015. On 5 June 2015, the delegate refused to grant the appellant a protection visa.

7    The delegate found that the appellant was not a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) and refused his application.

8    The delegate summarised the appellant’s claims for protection as follows (at Part A, [8]):

•    He is a Muslim from Joynagar, Sunamganj district; he is married with two children.

•    From 2009 until 2014 he was the owner/manager of his own business, M/S Suhag Enterprise, located at Patantula, Madina market.

•    In September 2013 he visited Singapore and Malaysia on business. He visited Malaysia a second time on business in October – November 2013. In April-May 2014 he visited Saudi Arabia for two weeks for Umrah (a Muslim pilgrimage).

•    He left Bangladesh due to his fear of persecution there and to avoid death threats from his political opponents – members of the ruling Awami League (AL) – who will harass and attack him if they find him.

•    He was actively involved in the politics of the Bangladesh Nationalist Party (BNP) for a long time. His involvement increased when he started his business. He became even more active when the BNP decided that he should stand in a union council election.

•    During the election campaign there were incidents between the opposing political parties in his locality. His opponents stalked, harassed and sometimes attacked his activists and followers. On election day some of his supporters were beaten by his opponents.

•    He lost the election after his opponents used election committee members and law enforcement agencies to falsify the election result.

•    Following the election his opponents threatened him a couple of times and also came to his home and threatened his family. The officer in charge of the local police station also turned against him and political opponents included the applicant’s name as a criminal and miscreant and filed a false charge against him.

•    His political opponents are looking for him. If he returns to Bangladesh they will start proceedings against him that may result in extra-judicial murder, e.g. crossfire, at the hands of the Rapid Action Battalion (RAB) or the police. He also fears that the false murder charge against him could result in him being imprisoned indefinitely, as is common in politically motivated cases in Bangladesh.

•    His political opponents are strong and have full government support. They consider him a big threat to their illegal activities in his locality. He opposed such activities. He was an exemplary figure in his locality and considered a threat to his opponents’ election prospects hence they want to destroy him.

•    His political opponents – the AL – are in power and law enforcement agencies such as the police and the RAB follow the AL’s instructions. Those agencies will never protect him or his interests.

(Emphasis in original).

9    The delegate accepted that (at Part A, [9]):

•    The applicant is a Bangladeshi citizen, a Muslim, and that he arrived in Australia for the first time in January 2014 before returning to Bangladesh. He arrived in Australia for the second time in August 2014.

•    He operated his own business in Bangladesh until August 2014.

•    He stood, unsuccessfully, as a BNP candidate in a local government level election in Bangladesh in 2011.

•    There may have been a degree of violence between BNP and AL members and supporters during the 2011 local government election campaign and on election day.

•    The applicant travelled to Singapore and Malaysia on business in 2013 and to Saudi Arabia for Umrah in 2014.

10    But the delegate did not accept that:

•    The applicant was attacked by political opponents during his 2011 election campaign.

•    The applicant and his family were subjected to serious threats from his political opponents following the 2011 election.

•    A false case was lodged against the applicant by political opponents in Bangladesh.

•    The applicant left Bangladesh because of his fear of persecution in that country.

11    Whilst the delegate found that the appellant’s claims that he may be murdered or imprisoned on false charges were the kind of “harm” capable of satisfying the conditions under s 91R(1)(b) and (c) of the Act, the delegate did not accept that the fear was well-founded and therefore was not satisfied that the appellant was persecuted in Bangladesh on the basis of his political opinion or for any other Convention-related reason nor was there a real chance of him being so in the foreseeable future.

The AAT’s decision

12    The AAT had concerns regarding the credibility of the appellant’s claims. The AAT described his evidence as “vague, evasive, implausible, contradictory or unconvincing”, and noted that there were “significant inconsistencies in his evidence”, he “made new claims throughout the process”, and “was unable to give a coherent and consistent account of events” such that the AAT had concerns “in relation to his credibility and the veracity of his claims”: at [18].

13    As to the appellant’s involvement in politics, the AAT summarised the appellant’s evidence as follows:

19.    In his visa application, the applicant claimed that he was actively involved in politics in the BNP for a long time. He claimed that he became more involved in politics once he started his own business. He claimed that he contributed to the BNP fund, organised political programs, regularly attended meetings and participated in publicity and public relation programs. During the hearing, he gave evidence that he became interested in the BNP between 2009 and 2010. He stated that he became a member of the BNP in 2010 and was invited to join a committee that had been formed. He stated that he was appointed to the position of Publication Secretary.

20.    The Tribunal asked the applicant what he did as a member of the BNP. He stated that he attended meetings once a month from 2010. He stated that he could not attend meetings from 2012 to 2013. When asked whether that meant that he stopped attending meetings in 2011, he stated that he thinks he stopped attending meetings in November 2013. When asked what was discussed at these meetings, he stated that they talked about how to administer the country well, keep good relationships with different countries and help people who are in need. When asked what he did as the Publication Secretary on the committee, he stated that his job was to convey information about when and where meetings were held. He stated that he did not hold any other position in the BNP other than Publication Secretary. The Tribunal finds it implausible that a village level committee would be having discussions about how to maintain good relationships with different countries during their meetings.

21.    During the hearing, the applicant made a new claim that he has attended BNP meetings in Australia. When asked about these meetings, he stated that they are held in the restaurant at which he works as a cook. He has not provided the Tribunal with any independent evidence of this despite having provided supporting documentary evidence from Bangladesh. His failure to do so raises concerns in relation to the credibility of this claim.

22.    The Tribunal asked the applicant a number of questions about the BNP. His knowledge of the BNP was limited and not consistent with his claims. When the Tribunal raised this as an issue with him, he responded that he would have a problem if he returns to Bangladesh. He stated that he has spoken the truth. He stated that if the Tribunal makes enquiries it would become aware of the problem he has in his area.

14    The AAT thereafter set out its misgivings with respect to the appellant’s purported supporting documentation. The AAT noted that with the letter received from the BNP Chhatak Upazila Branch, dated 26 April 2015, outlining the appellant’s involvement in the Branch, the letter did not indicate that the appellant had been a candidate in the Union Parishad Election held on 22 May 2011 (at [23]).

15    With respect to the appellant’s claims regarding the date of the election, the AAT noted the following:

25.    The Tribunal discussed these claims with him during the hearing. He gave evidence that he was a candidate in the Union Parishad election held on 22 May 2011. He has lodged with the Tribunal a copy of the Department's Decision Record dated 5 June 2015. It indicates that, during his interview with the Department on 2 June 2015, he stated that the election was on 22 May 2011. He has provided an election poster, that has a photograph of him, together with an English translation. It indicates that there is an upcoming Union Parishad election and the Nowarai Union’s no. 3 ward candidate is the applicant. It states “give him vote in the symbol of kite and give the scope of service of the people of word no.3.” (sic). It indicates that the document was printed by Fatema Art Press, Chhatak on 22 May 2011. The Tribunal has doubts about the authenticity of this document. The Tribunal finds it implausible that an election poster, presumably to be used during the election campaign, would be printed on the date of the election and then refer to an upcoming election.

26.    The applicant has also provided English translations of two documents titled ‘particulars of vote count of contesting candidate in the post of member of general seat, Nowarai Union Parishad, No.2 general word (sic), Chhatak Upazila’ and ‘result sheet of general member post no. 2 Nowarai Union Parishad election’ and a partially translated Nomination Form. The Tribunal has concerns about the authenticity of these documents. The first document is dated 5 May 2011. It is impossible that the results of the election on 22 May 2011 were available on 5 May 2011. When the Tribunal raised this as an issue with the applicant, he responded “if you investigate you will see I am telling the truth”. The nomination form indicates that he is the candidate being nominated and his date of birth is 5 May 2011. The form is also dated 5 May 2011.

27.    In his visa application, the applicant stated that he was unable to vote in the election because AL supporters ousted his agents from the polling booth when they found out how popular he was and that he was likely to win the election. He stated that the candidate who won the election was from the AL. This is not consistent with his evidence to the Department. He has lodged with the Tribunal a copy of the Department's Decision Record dated 5 June 2015. It indicates that, during his interview with the Department on 2 June 2015, he stated that the candidate who won the election in the ward he contested was another BNP candidate. The Tribunal also finds it implausible that, after the applicant lost the election, his opponents created problems for him, threatened him and went to his house and threatened his family when they were in power and he was no longer a threat to his opponents.

16    The AAT noted, at [28], the inconsistency in the appellant’s various accounts as to whether he was assaulted and threatened on election day. The AAT referred to the “new claim” made at the hearing that “AL supporters tried to kill him on 8 December 2012” and when pressed for details “he was evasive” (at [29]) and found (at [30]):

The Tribunal finds it implausible that the applicant would have mentioned in his visa application that his “workers” were beaten but failed to mention that an attempt was made on his life or that his business was attacked. He subsequently filed with the Tribunal a Statutory Declaration dated 16 September 2016. He made no mention of an attempt on his life or his business being attacked in that Statutory Declaration. At that time he had instructed a migration agent to act on his behalf. His failure to mention these claims in his visa application and in his Statutory Declaration dated 16 September 2016 raises concerns in relation to the credibility of these claims.

17    The AAT did not accept the plausibility of the appellant’s claim that after he had lost the election his opponents started creating problems for him including threats towards himself and his family, stating, at [31], it was “implausible that his opponents would have threatened him and tried to kill him, after the election, when they were in power and he was no longer a threat to them”.

18    As to the claim that the appellant was being falsely implicated in a murder and a false charge had been brought, the AAT noted first that the purported supportive documentation did not refer to anyone being killed during the protest, did not include him among those accused and that the appellant had no other evidence supportive of this claim: at [33]. Secondly, the AAT found that the appellant’s answers to what he was charged with were evasive: at [34]. Thirdly, the AAT noted that the appellant said at hearing that he had not been charged with murder (at [34]), which was inconsistent with what he had said in his visa application. In the Part of the appellant’s visa application titled “Part C, Schedule A – Details of any convictions, charges, investigations or crimes committed”, the appellant has specifically represented that he had been convicted of murder on 8 December 2013 and illegal association on 10 December 2013: at [35]. Fourthly, there was an inconsistency as to when the person was killed (about which the appellant was allegedly implicated). In the appellant’s statutory declaration, dated 16 September 2016, the appellant had claimed the murder had occurred “one year after the election” (being May 2012) yet the “First Information Report” attached a complaint which referred to a person being killed on 10 December 2013: at [36]. Fifthly, the purported supportive documents do not indicate that he is one of the accused: at [36]. Sixthly, if the person killed was a BNP leader, it appears highly unlikely that the appellant (who also claims to be a BNP leader) would be implicated in the murder: at [37]. Seventhly, it is highly unlikely that the appellant would have been charged with a serious criminal offence and not be required to attend court: at [37]. Eighthly, it is implausible that if the appellant was charged with a serious criminal offence he would not have made enquires to ascertain the status of the charge and that he would have been able to enter and exit Bangladesh on five occasions between January 2014 and August 2014 without being stopped and detained. The AAT found, at [37], that the fact that he was not stopped at the airport indicates that he is not of adverse interest to the Bangladeshi authorities.

19    The AAT thereafter considered the numerous, additional claims made by the appellant at the hearing which were tested and found to be unconvincing by the AAT: at [39]–[65].

20    The AAT then found that:

(a)    the appellant was “not a witness of truth” (at [66]);

(b)    the appellant was a supporter and member of the BNP (at [68]);

(c)    it had doubts that the appellant was a candidate for the Union Parishad election on 22 May 2011 but was prepared to give him the benefit of the doubt and accept he was, and was unsuccessful (at [68]);

(d)    the appellant was not threatened with harm, nor an attempt made on his life, nor was his business attacked or that he had any other problems with supporters or members of the AL or the Bangladeshi authorities after the election on 22 May 2011. The AAT did not accept any of his claims that flow from that including his claims in relation to murder charges (at [69]);

(e)    it did not accept that AL supporters went to the appellant’s home looking for him, that they threatened his family nor that his family is hiding in his village of Chhatak (at [70]);

(f)    the appellant travelled to Malaysia twice in 2013 and Singapore once in 2013 for business purposes. The AAT did not accept that he went to Malaysia to escape harm. The AAT did not accept that he travelled to Australia in January 2014 and again in August 2014 to escape harm (at [71]);

(g)    it was not satisfied that the following documents were authentic documents: The letter from the Bangladesh Jatiyotabadi Dol BNP, the First Information Report and the attached complaint, the election poster, the document titled ‘particulars of vote count of contesting candidate in the post of member of general seat, Nowarai Union Parishad, No.2 general word (sic), Chhatak Upazila’, the Nomination Form and the document titled ‘result sheet of general member post no. 2 Nowarai Union Parishad election’ (at [72]); and

(h)    it did not accept that the appellant will be arrested, detained, harmed or killed by the police or AL supporters if he returns to Bangladesh. The AAT was not satisfied that he is at risk of serious harm or significant harm from AL supporters or the Bangladeshi authorities if he returns to Bangladesh now or in the reasonably foreseeable future (at [73]).

21    As a consequence the AAT concluded that it was not satisfied that there is a real chance that the appellant would suffer serious harm for any of the reasons claimed if returned to Bangladesh now or in the reasonably foreseeable future (at [74]), and therefore would be unable to found a claim of (at [75]):

[P]ersecution on the grounds of his actual or imputed political opinion or any, other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal [found] that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason … [and found] that he does not satisfy the criterion in s.36(2)(a) of the Act.

22    The AAT rejected his claims for complementary protection on the basis of the same findings (at [76]–[78]):

76.    The Tribunal has considered the applicant’s claims under complementary protection.

77.    In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

78.    Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

23    As a consequence, the AAT found that the appellant does not satisfy the criterion in s 36(2)(aa) of the Act. There were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Bangladesh, there was a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.

Relevant legislative provisions

24    Section 36 of the Act sets out the criteria an applicant must satisfy in order to be granted a protection visa.

25    Section 36 provides:

36 Protection Visas – criteria provided for by this Act

(1A)     An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)     at least one of the criteria in subsection (2).

(1B)     A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)     A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)     is a danger to Australia’s security; or

(b)     having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

(2A)     A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

(2C)    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a)    the Minister has serious reasons for considering that:

(i)    the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii)    the non-citizen committed a serious non-political crime before entering Australia; or

(iii)    the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b)    the Minister considers, on reasonable grounds, that:

(i)    the non-citizen is a danger to Australia’s security; or

(ii)    the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Protection obligations

(3)     Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4)    However, subsection (3) does not apply in relation to a country in respect of which:

(a)    the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5)    Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a)    the country will return the non-citizen to another country; and

(b)    the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A)    Also, subsection (3) does not apply in relation to a country if:

(a)    the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

Determining nationality

(6)    For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7)    Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

The primary judge’s decision

26    Prior to the hearing of the judicial review application, the appellant had claimed two grounds of review (at J[19]):

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

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)(a) of the Act

2.     The Administrative Appeals Tribunal denied the Applicant’s procedural fairness.

(Emphasis in original).

27    At the hearing, the appellant advanced three further claims (grounds 3 to 5) which were as follows:

(3)    the AAT had failed to consider certain unparticularised documents (at J[25]);

(4)    the AAT “should have investigated more” (at J[29]); and

(5)    allegations relating to the merits of the appellant’s visa application (at J[30]).

28    The primary judge found there was no jurisdictional error established on any of the five grounds and dismissed the application: at J[31]–[32].

29    His Honour provided reasons for dismissing the application (at J[20]–[30]):

Ground 1

20.     The burden of the first ground of the application was that the Tribunal was not permitted when reaching a conclusion on the complementary protection elements of the applicant’s claim to rely on the findings that it had made in the context of his Convention-related claims.

21.     That is not necessarily so. If the findings of fact made in relation to an applicant’s claim to fear persecution have relevance to his or her claims for complementary protection, the Tribunal is free to apply those findings to both issues. For instance, it was said by the Full Court of the Federal Court in SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26:

We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act. (at page 34, [32])

A similar decision was reached by Farrell J in SZUYK v Minister for Immigration and Border Protection (2016) 151 ALD 360 at 370 [36].

22.     As the Minister submitted in addresses in this proceeding, the point is made all the more clearly in circumstances where the decision turns on credibility findings. If an applicant’s claim to fear persecution is rejected because his claims are not credible, it logically follows that the rejection of those claims will be relevant to the Tribunal’s consideration of related complimentary protection issues.

Ground 2

23.     The allegation that the Tribunal denied the applicant procedural fairness was unparticularised and so lacks meaningful substance. For the purposes of Tribunal hearings, the natural justice hearing rule is codified in the relevant part of the Act, and it is to the provisions in that part that reference must be had when alleging a denial of procedural fairness in a proceeding such as this one. No such reference having been made, the allegation should fail, but in any event, it is not apparent that the Tribunal had any s.424A(1) obligations to the applicant that were not addressed by the s.424AA notification referred to at paras.53, 54, 55 and 56 of the Tribunal’s decision record.

24.     Nor is it apparent that there was any breach of the Tribunal’s obligations under s.425(1) of the Act requiring the applicant to be aware of the issues which would be determinative of his review. For these reasons, the second ground of the application is not made out.

Ground 3

25.     At the hearing of this application, the applicant alleged that the Tribunal had failed to consider documents. The applicant did not identify any particular document which the Tribunal did not consider.

26.     It might be noted that in para.12, the Tribunal referred to a number of documents provided by the applicant. These were discussed by the Tribunal. In para.23 of its reasons the Tribunal discussed a letter from the applicant’s local branch of the BNP dated 26 April 2015. Later in that paragraph, it also referred to a membership list which the applicant provided. In para.25, the Tribunal referred to an election poster, which the applicant provided at some point, going on to consider that it did not ring true because of the date that it bore. In para.26, the Tribunal referred to English translations of two documents, one being “particulars of vote count of contesting candidate in the post of member of general seat [of the local council]” and “result sheet of general member post [council] election” and a partially translated nomination form. The Tribunal expressed its concern about the authenticity of those documents. At para.33 referred to and discussed the first information report and attached complaint, both being dated 10 December 2013. The Tribunal went on to discuss those documents in subsequent paragraphs. In para.44, the Tribunal discussed a blank letterhead from the applicant’s business which he had provided to the Department. In para.48, it discussed the applicant’s Bangladeshi passport and the stamps which it bore, indicating overseas travel on five occasions between September 2013 and March 2014. In para.58, the Tribunal talked about another document from the BNP which the applicant had provided to the Tribunal.

27.     The Tribunal went on to find at para.65:

65.    The Tribunal has considered all the supporting documents provided by the applicant to the Department and the Tribunal. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. …

28.     In circumstances where the applicant has not identified what particular document was not considered and in light of the thoroughness of the Tribunal’s reasoning, I am not persuaded that the Tribunal overlooked any material documentary information.

Ground 4

29.     In his address to the Court, the applicant argued that the Tribunal should have investigated more. Although its processes are inquisitorial in nature rather than adversarial, the Tribunal does not have an investigative function. Its duty is to make a decision on the information supplied to it by the Secretary of the Minister’s Department and by the applicant. It has power to make enquiries but is only required to make enquiries in very limited circumstances and it is not apparent that such circumstances obtained in this case. The Tribunal did not err by not making enquiries.

Ground 5

30.     The remaining matters raised by the applicant of the hearing of this application concerned the merits of his visa application and whether he would face persecution were he to return to Bangladesh. As explained to the applicant at the hearing and as noted earlier in these reasons, the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error, not whether the applicant met the criteria for the grant of a visa. It has no power to engage with the merits of an applicant’s visa application. For that reason, those allegations do not provide a basis upon which the Tribunal’s decision ought to be set aside.

(Emphasis in original).

Grounds of appeal

30    The grounds of appeal in the present case comprise of the following:

Ground One:

The AAT 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, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

Ground Two:

The AAT denied procedural fairness to the applicant.

(Emphasis in original).

31    Grounds 1 and 2 are the same as the grounds that were before the primary judge.

32    On appeal, the appellant provided the following written submission which is extracted in full:

I am from Bangladesh. I am unable to return to my country, as I have threats on my life and due to this I am suffering from mental health. I have attached my medical documents. I say, my wife is battling with cancer and has three young children. If I have to return to Bangladesh, I will not be able to support my family and will have financial difficulty.

I therefore say to the honourable judge that if I am given an opportunity to stay in Australia, I will be able to work harder and contribute to Australia. I will not rely upon any centrelink or some other social services.

Please consider my limitations and I have attached my medical documents.

Thank You.

Consideration

Ground 1

33    By ground 1, the appellant contends that the AAT failed to apply the correct test pursuant to s 36(2)(aa) of the Act, namely that it failed to disaggregate the statutory formulae under s 36(2)(aa) from its consideration under s 36(2)(a) of the Act. The appellant relied on his written submissions.

34    I am not persuaded that the AAT failed to apply the correct test. The AAT considered each of the criteria which must be satisfied under s 36(2)(a) of the Act (at [17]–[65]) and made its concluding findings: at [66]–[75]. The AAT then turned to consider the appellant’s claims for complementary protection paraphrasing in the section’s title the statutory test under s 36(2)(aa). At [77]–[78], the AAT did consider separately the s 36(2)(aa) criteria and referred to the bases for the establishment of “significant harm” under s 36(2A). Whilst the AAT’s reasons with respect to s 36(2)(aa) are short and only refer in general terms to findings made with respect to s 36(2)(a) as forming the basis for the findings with respect to this claim, this is understandable.

35    As referred to by the primary judge, at J[21], the Full Court has accepted that there may be overlap in the findings that “no harm… was suffered” (under s 36(2)(a)) and whether the Minister had substantial grounds for believing that there is a real risk that the non-citizen will suffer significant harm (under s 36(2)(aa)): SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [32].

36    More recently the High Court in DQU16 v Minister for Home Affairs [2021] HCA 10; 388 ALR 363 at [27]:

Although the statutory questions posed by s 36(2)(a) and (aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and (aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C). And, as will be seen, that is what the Authority did in this case.

(Footnotes omitted).

37    As observed by the Minister, this ground is substantively identical to those grounds raised and dismissed in previous cases: see SZUYK v Minister for Immigration and Border Protection [2016] FCA 216; 151 ALD 360 (at [15], [35]) (special leave to appeal refused: SZUYK v Minister for Immigration and Border Protection [2016] HCASL 172) and most recently DKV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 716 (at [24], [26]).

38    Accordingly, this ground is misconceived and must fail.

Ground 2

39    By ground 2, the appellant makes the unparticularised claim that the AAT denied him procedural fairness. When asked at hearing to identify how the AAT had denied him procedural fairness, the appellant submitted that there is no protection for people like him in Bangladesh, that he has children and his health is not good. He believed that the AAT did not consider all his circumstances.

40    I do not accept that there is a basis for this ground of appeal.

41    First, as can be seen at [29] above, the primary judge dealt with this ground, at J[23]–[24], and in particular the codified natural justice rules at ss 424A, 424AA and 425(1) of the Act.

42    Secondly, as submitted by the Minister, which I accept, as required under s 425(1) of the Act, the AAT invited the appellant to appear before it, tender evidence and make submissions. The AAT’s reasons are replete with references of the AAT raising its concerns with the appellant and seeking the appellant’s responses: see [20]–[22], [25]–[26], [29], [31], [33]–[34], [38]–[39], [42]–[43], [46], [48], [50], [53]–[54], [56], and [58]–[59]. The AAT also heard evidence from the appellant’s witnesses and considered their evidence: [61]–[64].

43    Thirdly, a generalised submission, without specific allegation of a denial of procedural fairness, is insufficient to provide a basis for this ground. It is unclear as to what the appellant means by the AAT’s failure to consider “all his circumstances”. To the extent that the appellant now raises his personal circumstances – his health and his wife’s health – these are not matters which formed part of the representations made to the delegate nor the AAT nor formed part of a basis for his protection visa application.

44    I therefore reject the basis for this ground of appeal.

Application to rely on fresh evidence

45    To assist his argument the appellant sought leave pursuant to s 27 of the FCA Act to rely on fresh evidence on appeal, namely:

(a)    two letters, dated 8 March 2020, from the appellant’s sons’ school, confirming the appellant’s sons’ attendance at that school;

(b)    a letter, dated 8 March 2020, from a different school confirming the attendance of another of the appellant’s sons at the school;

(c)    a medical certificate, dated 29 July 2022, from an Australian general practitioner referring to the appellant’s current health conditions;

(d)    a histopathology report, dated 1 November 2020, and an Medical Services review report dated, 16 January 2021, from Bangladesh, with respect to the appellant’s wife’s health conditions; and

(e)    a letter, dated 12 September 2022, from an Australian psychologist, regarding the appellant’s current mental health.

46    None of the documents were before the delegate of the Minister nor the AAT. They all post-date those processes.

47    The Court has the remedial power, under s 27 of the FCA Act, to admit fresh evidence, so as to ensure proceedings do not miscarry. Rule 36.57 of the Federal Court Rules 2011 (Cth) sets out the requirements for an application, however, no formal application was made here.

48    As recently observed by the Full Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 (Markovic, Thomas and Halley JJ) at [12]:

The Court has the power to admit fresh affidavit evidence on an appeal pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).

(Emphasis in original).

49    I refuse the application on the basis that even accepting the providence and admissibility of documents, none of those documents deal with matters which the AAT was required to consider – namely whether the appellant satisfied the criteria under either ss 36(2)(a) or 36(2)(aa) of the Act. No claim was made to the delegate of the Minister for which the documents could be relevant. Whilst the Court accepted that they reveal the very unfortunate circumstances in the appellant’s personal life, they are unfortunately not matters which are relevant to the Court’s confined judicial review functions.

Conclusion

50    For these reasons, I dismiss the appeal with costs.

Associate:

Dated:    18 October 2022