Federal Court of Australia

DMJ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 17

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the amount of $4,531.50 within 28 days of the date of this order.

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 Federal Circuit Court of Australia (FCCA), as it was then known, made on 4 December 2019: DMJ16 v Minister for Immigration & Anor [2019] FCCA 3507 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the second respondent (Tribunal) made on 25 October 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister), made on 11 May 2015, refusing to grant the appellant a Temporary Protection (Class XD) (Subclass 785) visa pursuant to s 65 of the Migration Act 1958 (Cth).

2    In proceedings of this kind, the Court’s jurisdiction is very confined. While this Court has jurisdiction to hear an appeal from the former FCCA (now Federal Circuit and Family Court of Australia (Division 2)) pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), it cannot undertake impermissible merits review. At hearing, the appellant submitted, inter alia, that the decision of the FCCA was generally unfair and that he had suffered an “injustice”. The appellant also submitted that he had a “real fear” of returning to his country. However, this Court cannot impugn a decision of a lower court on the basis that the decision is purportedly unfair or unjust, unless the decision is affected by jurisdictional error. As Brennan J held in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 37:

If the courts were to assume a jurisdiction to review administrative acts or decisions which are “unfair” in the opinion of the court – not the product of procedural unfairness, but unfair on the merits – the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ…

(Footnotes omitted.)

Background

3    The appellant is a citizen of Bangladesh, who arrived in Australia on 6 May 2013 as an irregular maritime arrival.

4    On 13 August 2013, the appellant applied for a Protection (Class XA) (Subclass 866) visa. However, following amendments to both the Act and the Migration Regulations 1994 (Cth), the appellant’s application for a Protection visa was converted into an application for a Temporary Protection visa.

5    The appellant claimed to fear harm in his home country due to previous threats and acts of violence by members of the Awami League (AL). The appellant claims that members of the AL demanded that the appellant’s father (who owned a business) provide them with money. The appellant further claims that after the appellant’s father refused to pay members of the AL, they burnt a vehicle belonging to the appellant’s family and kidnapped the appellant. The appellant claims he was later released after his father undertook to pay a ransom sum to the AL, although the appellant claims his family could not pay this sum. The appellant claims he was targeted because he is a member of a wealthy and well-known family, and because the AL perceives the appellant to be a supporter of the Bangladesh Nationalist Party (BNP), due to his father’s friendship with a provincial leader of the BNP.

The delegate’s decision

6    The appellant attended an interview with the delegate on 21 April 2015. Following the interview, on 1 May 2015, the appellant’s migration agent provided a written submission in relation to the appellant’s claims and concerns raised at the interview.

7    On 11 May 2015, the delegate refused to grant the appellant a Temporary Protection visa. The delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations under s 36(2)(a) of the Act and cl 785.221(2) of Sch 2 to the Regulations.

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

•    The [appellant’s] family owned and operated a successful spare parts business called “Islam Motors” in his village. He worked in the family business from 18 years of age until April 2013.

•    The [appellant’s] father operated this business from 1996. The business was profitable and his family were well known because of their success and wealth.

•    On 15 February 2013 five members of the Awami league [sic] came to the business. They demanded the [appellant’s] father pay 10 lakhs. They threatened to close the business down. The [appellant’s] father told the Awami League members that he did not have such money and argued with them.

•    Two days later the same men returned to the business. The [appellant] was in the shop alone. They told the [appellant] that his father had not paid the money demanded and threatened to kill the [appellant]. He explained that they could not afford the money and queried why they were being forced to pay this money.

•    Five days later the [appellant] believes the five Awami League men destroyed a three wheel vehicle owned by the family.

•    Five days later he was kidnapped. He was at the shop at the time and was blindfolded and taken to an unknown location. After he arrived at the destination his blindfold was removed and he was kept for three days. For these three days he was repeatedly told he would be killed if his father did not pay the 10 Lakhs. He was told not to go to the authorities. The men called the [appellant’s] father and his father requested 15 days to obtain the money.

•    Three days later he was released because of an undertaking made by his father to pay the money.

•    The [appellant’s] family could not afford to pay the money and were certain that after the 15 days the men would return and kill him.

•    13 days after his release the [appellant] fled to Cox’s Bazaar [sic] and remained there until he departed Bangladesh. On 1 April 2013. In Cox’s bazaar [sic] he frequently moved to avoid members of the Awami League.

•    After the kidnapping his father closed down the business permanently. He was afraid the five men would return and that the family would continue to be subjected to extortion threats.

•    15 days after he had been released the Awami League men called the [appellant’s] father and demanded he pay the 10 Lakhs. The [appellant’s] father explained he could not pay the money.

•    In addition to being from a wealthy family the [appellant] believes he is also being targeted because of his father’s close friendship with a man named Totamia Munshi who is the provincial leader for the BNP. Awami League members are well known to target supporters of the BNP. He believes he is perceived as a BNP supporter because of this friendship.

•    The [appellant’s] family support the BNP. They are not active members but voted for the BNP at the last election.

•    About 15 days prior to the statement the [appellant] spoke to his father who informed that [sic] the Awami League members had called many times and had threatened to kill the [appellant] because the family had not paid the 10 Lakhs. His father has since changed his mobile number.

•    The [appellant] believes he will be seriously physically harmed or killed by members of the Awami League including the five men who kidnapped him.

•    The [appellant] claims he will be harmed because he is from a successful, wealthy and well-known family, his family refused to pay the Bangladeshi Awami League the money the [sic] demanded and because he and his family are/are [sic] perceived supporters of the BNP.

•    He cannot rely on the protection of the authorities. The Awami League is the current government and the five men would have connections with the government and know if he made a complaint.

•    The authorities would be unwilling to protect him because he is or perceived to be a supporter of the BNP.

•    There is nowhere in Bangladesh he could be safe. The Awami League could locate him.

9    The delegate made the following credibility findings in relation to the appellant’s evidence (at Part A, [9]):

(a)    The appellant’s responses at the interview regarding significant events were “vague and lacking in specific detail”. For instance, when the delegate asked about the first specific threat made against the appellant or his father by the AL, the appellant “provided a series of vague and generalised answers about both him and his father being generally threatened in the family shop”. The delegate found that, if the appellant had experienced the claimed threats, the appellant would be able to respond to questions regarding these events “directly and spontaneously without the need of persistent questioning to extract detail”.

(b)    The appellant’s description of his purported kidnapping lacked specific detail. The appellant’s responses in the interview did not go above the information already provided in his statements of claim.

(c)    The appellant’s failure to mention the kidnapping at his first interview with the Department (“the entry interview”) in June 2013 because he was “scared” was not a satisfactory explanation, according to the delegate. The delegate was not satisfied that “fear would have stopped the [appellant] raising this significant even when given the opportunity”.

(d)    The appellant provided inconsistent testimony regarding key events leading up to his departure from Bangladesh. For instance, in the appellant’s written claims, he states that after being released from his kidnapping, he fled to Cox’s Bazar 13 days later as his family could not afford to pay the agreed upon ransom. However, at the interview, the appellant claimed that he instead fled to Cox’s Bazar the day after he was released. The delegate was not satisfied that the appellant’s representative’s submissions regarding the effect of trauma and time on the appellant’s memory could explain “such a significant inconsistency”.

(e)    The appellant also discussed his family circumstances at the interview, noting that his father, mother and two brothers still resided in his family home in Bangladesh. The appellant noted that his two sisters had married locally. The delegate put to the appellant that he had concerns that the appellant’s family seemed to be going about their daily business and yet the appellant claimed that he feared returning to Bangladesh as he would be killed by members of the AL. The delegate did not accept the appellant’s explanation that he, as opposed to his family, would be killed given his family had failed to pay the ransom and that the appellant was the eldest son who worked at the family auto supply shop and had argued with members of the AL.

(f)    The delegate also found that neither the appellant nor his family are BNP supporters or are perceived to be BNP supporters, given the appellant did not vote in the 2008 national elections in Bangladesh.

10    The delegate made the following findings of fact (at Part A, [9]):

•    I am not satisfied the [appellant] or his father had money demanded from them by members of the Bangladeshi Awami League or any other persons.

•    I am not satisfied the [appellant] was kidnapped by members of the Bangladeshi Awami League or any other persons.

•    I am not satisfied the [appellant] and his family are BNP supporters or are perceived to be BNP supporters.

•    I am not satisfied the [appellant] fears harm in Bangladesh because he comes from a successful, well known, family.

•    I am not satisfied the [appellant] fears harm in Bangladesh because his family refused to pay money to the Bangladeshi Awami League.

•    I am not satisfied he [sic] [appellant] fears harm in Bangladesh because he and his family are/are perceived to be supporters of the BNP.

•    I am not satisfied the [appellant] fears harm of any type in Bangladesh for any, including Refugee Convention related, reason.

11    On the basis of the delegate’s credibility findings, the delegate was not satisfied that the appellant feared harm in Bangladesh so as to satisfy s 91R(1)(a) of the Act. On this basis, the delegate did not make findings with respect to whether the purported harm would satisfy ss 91R(1)(b) and 91R(1)(c) of the Act.

12    With respect to the appellant’s complementary protection assessment, the delegate was satisfied that the harm claimed by the appellant was significant for the purposes of s 36(2A) of the Act. However, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia, the appellant would suffer a real risk of significant harm, pursuant to s 36(2)(aa).

The Tribunal’s decision

13    On 25 October 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant a Temporary Protection visa.

14    The Tribunal commenced its reasons by summarising the appellant’s claims as articulated in his entry interview conducted on 6 June 2013, as contained in the statutory declaration attached to his Protection Visa application and, following the interview with the delegate, his post-hearing submission.

15    In response to concerns raised about apparent inconsistencies in the appellant’s various accounts of the timeline of events, the Tribunal noted, at T[33]:

…[I]t is submitted that the [appellant] genuinely cannot remember upon exactly which date the claimed incidents occurred because of the compounding stress and anxiety caused by them. It is noted that in his statement of claims only approximate dates have been given for this same reason. His explanation for why he did not, and cannot, provide precise details of these events is plausible in light of what he has experienced. The substantial elapse of time since the [appellant’s] experiences and between the opportunities with which he has been provided to recount those experiences, must also be taken into account.

16    The Tribunal also detailed the appellant’s submissions and oral evidence provided at the hearing before the Tribunal on 4 October 2016.

17    The Tribunal then turned to make its “Findings and Reasons”: at T[44].

18    Regarding the appellant’s “[c]redibility”, the Tribunal noted that the appellant’s “oral evidence about several key aspects of his claims” were “significantly inconsistent with his written claims”. The Tribunal considered that this reflected poorly on the appellant’s credibility and found that the appellant was not a reliable witness: at T[46].

19    With respect to the appellant’s claim that both he and his family were harassed by members of the AL, the Tribunal made the following observations and findings (T[47]–T[58]):

47.    Central to the [appellant’s] claims is that Awami League members harassed him and his father and attempted to extort money from the family business. The [appellant] was asked for details about the occasions on which members of the Awami League came to his family shop demanding money. He said the first occasion occurred on 15 February 2013 and on that day they demanded money and he and his father got into an argument with the Awami League members about this and they left. He said that two days later, when his father could not pay the money he was kidnapped from the shop. When asked to confirm the number of times that Awami League members came to their shop in total he said it happened twice. The [appellant] was asked whether there were any other encounters with members of the Awami League. He said that his family’s baby taxi was burnt five days after he was kidnapped. The Tribunal asked how he learnt about the taxi being burnt and he said the driver reported it to him when it happened. The Tribunal stated that based on his evidence it appears he might still have been held by his kidnappers at that stage and he agreed with that. He then changed his evidence and said that the driver reported it to his father who later told him.

48.    Noting the above responses, the Tribunal put it to the [appellant] that his oral evidence appears significantly different to his written account of events which indicates that the Awami League members came to the shop on two occasions demanding money before the three-wheeler or baby taxi was burnt and then returned to the shop about 5 days after that incident to kidnap him. The [appellant] replied that he was in a panic when these events happened and he can’t keep track of the details. The Tribunal asked him how he can be certain then that the first event happened on 15 February 2013 and he said it is because that was the first time anything happened. The Tribunal said it accepted he would have been panicked at the time if the claimed events happened but questioned why he was able to recall the events in his detailed written statement but now could not provide a consistent account of the sequence of events. The [appellant] repeated that he was in a state of panic.

49.    The Tribunal asked the [appellant] for further details about his claimed kidnapping. He said that the same five Awami League members who came to their shop demanding money captured and blindfolded him and took him away in a microbus. He said they drove for around five hours and then detained him in a room and told him he would be killed if the money which was demanded was not paid. He said that later on he was allowed to talk to his father and he told his father to agree to pay the money to see if they would release him. His father told them he would pay them in fifteen days and three days later he was released.

50.    The Tribunual [sic] put it to the [appellant] that it is difficult to believe that the Awami League members would go to the trouble of kidnapping him and taking him to a location five hours drive away only to release him three days later without any payment being made. The Tribunal pointed out that this is not how kidnapping for ransom generally takes place. The [appellant] replied that they must have thought his father would pay the money knowing that their business was doing well. The Tribunal pointed out that previously he had said that he and his father had argued and objected to paying the money and given this previous defiance it is difficult to accept that they agreed to release him without any surety of payment.

51.    The [appellant] advised the Tribunal that after the claimed kidnapping he was taken back to Munshiganj by his kidnappers. He said from there he took a local transport to his home. On arriving home his father told him it would be too risky for him to stay there and the following morning he left for Cox’s Bazar. The Tribunal pointed out that his written claims state that he fled to Cox’s Bazar thirteen days after his release. The [appellant] replied that he has been asked a lot of questions about these events and it is possible an error might have been made. He insisted that he left to Cox’s Bazar one day after his release.

52.    The [appellant] advised at hearing that his family in Bangladesh are not currently experiencing problems. He said that after he left Bangladesh the Awami League members came to his house to accuse his father of not honouring their agreement but that after his father stopped doing business they no longer have dialogue with him. The Tribunal suggested it is unlikely they will want to harm him in future given they have made no attempt to harm his father or other family members. The [appellant] replied that it is because he lied to his kidnappers and he is the oldest son. The Tribunal noted that on his evidence his father had also lied to them and yet he hasn’t been harmed. The [appellant] stated that after he left the country his father told them he couldn’t pay them the money and they would have to get it from him. He maintained that the Awami League members remain intent on collecting the 10 lakhs which was promised.

53.    During the hearing the Tribunal advised the [appellant] that there is some information before it that would, subject to his comments on, or response to it, be the reason or part of a reason for affirming the decision that is under review. Pursuant to the requirements at s.424AA of the Act the Tribunal put it to the [appellant] that the record of interview of his entry interview held on 6 June 2013 makes no mention of the fact he was kidnapped by members of the Awami League. The Tribunal explained that this information is relevant because his failure to mention such a significant event calls into question the validity of his claims. The Tribunal explained that if it were to rely on the information it may find that his evidence is not credible and reject his claims, which may lead the Tribunal to affirm the decision. The [appellant] was invited to comment on, or respond to, this information. He was asked if he needed more time to do so but he agreed to respond immediately.

54.    The [appellant] stated that initially he thought there would be complications and things he said might be taken otherwise. He said there were many things to say and he thought that if he mentioned everything it might be detrimental to his interests. He said that later on he found out it was better to tell the whole story and that is when he told his lawyer everything. The Tribunal indicated that it found this response surprising noting that it is difficult to accept he would not have mentioned such a significant and central element of his claims. He said that he did not know what was right or wrong at the time and he didn’t want to create problems for himself. He said that he later realised there would be no problem in telling the whole story. The [appellant’s] representative added later in the hearing that applicants are not legally represented in those interviews and it appears that when he was asked why he left Bangladesh the discussion went along the lines of the attempted extortion. The [appellant’s] representative asked that the Tribunal not place much weight on this omission.

55.    The Tribunal has had regard to the [appellant’s] submissions that due to stress and anxiety he cannot recall upon exactly which date the claimed incidents occurred. The Tribunal has some sympathy for the submission that exact dates are difficult to recall but does not find this accounts for the lack of consistency about the claimed sequence of events. There is no medical evidence before the Tribunal to support that the [appellant] is suffering from a medical condition such that his concentration and memory is impaired. Further, the Tribunal finds it significant that the [appellant] was able to recall the details of events claimed in some detail in a written statement attached to his application for a Protection visa. The Tribunal notes that the [appellant] had ample time to prepare for the hearing and despite knowing the details of his written claims was still unable to provide a consistent account of the sequence of events that took place. The Tribunal is of the opinion that the inconsistencies between his written and oral claims indicate the [appellant] was not speaking about events which affected him personally. Further, when the Tribunal pointed out to the [appellant] that he could not have been informed that the three-wheeler taxi had been burnt by the driver when he was being held by his kidnappers the [appellant] quickly changed his evidence to a totally different account of how this occurred. The Tribunal considers this reflects poorly on his credibility.

56.    In addition, the [appellant] has not in the Tribunal’s opinion provided a plausible explanation for why his written claims, which were produced in a far less stressful environment than a Tribunal hearing, state that he fled to Cox’s Bazar thirteen days after he was released by his kidnappers whereas he now claims it was the day after his release. The Tribunal does not accept the [appellant’s] response that this is due to error and again, the Tribunal considers this inconsistent evidence reflects poorly on the [appellant’s] credibility.

57.    Further, the Tribunal finds the [appellant’s] explanation as to why his kidnappers released him after three days without any money being paid to be highly problematic. According to the [appellant’s] written claims, he and his father had twice refused to pay the money and given the alleged kidnappers were prepared to risk abducting him from a public place and driving him to a location some five hours away, the Tribunal finds it implausible they would have released him on a promise the money would be paid in fifteen days. The Tribunal considers that if the Awami League members were so intent on getting the money from the [appellant’s] father they would have held the [appellant] for the duration of fifteen days to ensure they received it. The Tribunal has given consideration to the [appellant’s] responses regarding his failure to mention the claimed kidnapping at his entry interview and the abovementioned request made by his representative. In light of the above, the Tribunal has formed its opinion on this matter without the need to place any weight on the omission of this information during the [appellant’s] entry interview.

58.    For these reasons, the Tribunal does not accept that Awami League members threatened and attempted to extort money from the [appellant] and his father, that they burnt the family’s three-wheeler or baby taxi or that they kidnapped the [appellant] and threatened to kill him if their financial demand was not met or that the [appellant] was forced to flee to Cox’s Bazar to avoid being harmed or killed by Awami League members. It follows that the Tribunal does not accept that Awami League members are continuing to look for the [appellant] in relation to these matters.

20    With respect to the appellant’s claims that both he and his family were supporters of the BNP, and that the appellant and his family were relatively wealthy and were known to run a successful business, the Tribunal made the following observations and findings (at T[59]–T[62]):

59.    When asked why he thought his family was being targeted for extortion by the Awami League the [appellant] stated that one reason might be that his father and mother support the Bangladesh Nationalist Party (BNP) and his father is friends with, and moves around with, the local Chairman who is a member of the BNP. When asked for further details about his family’s involvement with the BNP he said they are just general supporters. He said that he personally has no interest in politics, doesn’t like any political party and has never voted in Bangladesh. The [appellant] confirmed his father is still friendly with the Chairman. When asked if the friendship is causing his father any problems he said he has not been told anything like that. The Tribunal also notes that at the commencement of the hearing the [appellant] was asked whether he was in contact with his family and how they are doing. He replied that he does speak to his family quite frequently and they are doing fine. Based on this evidence, the Tribunal is satisfied that if the [appellant’s] father is indeed friends with the Chairman the relationship has not drawn any adverse attention from the Awami League. The Tribunal considers it likely this is due to the family not being politically involved other than possibly by voting for the BNP. In the circumstances, the Tribunal can see no reason why the [appellant] himself would be at risk of harm for reason of this association on return to Bangladesh.

60.    The Tribunal has considered the submission that both supporters and members of political parties opposing the government have been subject to persecution and that the level of one’s political involvement may be largely irrelevant to whether or not it is likely a person will be targeted for harm on that basis. Based on his oral evidence the Tribunal is satisfied the [appellant] is not even a supporter of the BNP and given his expressed lack of interest and involvement in any political activity the Tribunal is not persuaded he would be imputed to be a BNP supporter other than possibly through his father’s personal friendship with the Chairman. On the evidence before it, the Tribunal is not satisfied that there is a real chance of this happening and even if it did his own father has come to no harm from Awami League members as a result of this association.

61.    The [appellant] claims that another reason his family was targeted in the past is because they are relatively wealthy villagers and/or because he is from a family that is well-known to have run a successful business. As noted above, the Tribunal does not accept the [appellant] or his father were targeted or harmed by the Awami League in the course of their business affairs. Given the reasons provided above, the Tribunal finds that if the [appellant’s] father ceased operation of their family business it must have been for reasons other than those which the [appellant] claims. In any event, the [appellant] stated at hearing that his family is no longer in business and now rely on their agricultural activities for their living.

62.    When asked to describe his family’s financial status today he said that their financial situation is far less than it was before and they now support themselves from their land earnings. Also, when asked to describe his family home the applicant described a typical village house with a concrete floor and tin roof with electricity supply and well water. While he advised his family own 2 kani of agricultural land he said this is more than some people have but less than others. Whereas the family might have been previously better off financially, their living conditions are not claimed to be different to other villagers and nowadays their financial situation does not appear significantly different to other local land owners. In view of this, the Tribunal is not satisfied the [appellant’s] family can currently be described as wealthy and given they no longer operate a commercial business the Tribunal is not satisfied they would be identified as successful business owners. The Tribunal has had regard to DFAT’s country information report on Bangladesh dated 5 July 2016 which indicates that the Awami League reportedly threatens and extorts business owners in rural areas, particularly those linked to the BNP. However, in view of his family’s current circumstances, the Tribunal is not persuaded that the [appellant] will be at risk of harm for this reason now or in the foreseeable future if he returns to Bangladesh.

21    Having considered the appellant’s evidence, the Tribunal was not satisfied that there was a real chance that the appellant would suffer serious harm upon return to Bangladesh for a reason under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), and therefore he did not satisfy the requirements provided for in s 36(2)(a) of the Act: at T[63]. The Tribunal also found, for the same reasons, that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there was a real risk the appellant would suffer significant harm. As such, the appellant did not satisfy the requirements for complementary protection under s 36(2)(aa) of the Act: at T[64].

The FCCA’s decision

22    The appellant applied for judicial review of the Tribunal’s decision in the FCCA on 18 November 2016.

23    The appellant advanced five grounds of review, which were extracted by the primary judge as follows (at J[42]):

1.     The Administrative Appeal Tribunal (Refugee) (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make [sic] decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.

2.     The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

3.     The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s423A and 430(1)(c) and (d) of the Migration Act 1958.

4.     The applicant claims that the Tribunal was preoccupied and that was why he was denied natural justice and procedural fairness when the Tribunal formed the view about the applicant before the hearing. Preoccupation is clearly authenticated in its decision that the Tribunal has cut & pasted from the delegate’s decision.

5.     The applicant was deprived of the [sic] natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has [sic] adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.

(Emphasis in original.)

24    The primary judge found there was no jurisdictional error established on any of the five grounds advanced by the appellant, and dismissed the application: at J[58].

25    His Honour provided reasons for dismissing the application (at J[43]–[57]):

Ground 1

43.    In relation to ground 1, the Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its statutory obligations. Further, on the face of the Tribunal’s reasons, the Tribunal had an active intellectual engagement with the applicant’s claims and evidence and made dispositive findings which were open for the reasons given by the Tribunal, as summarised above.

44.    No error of law as alleged in ground 1 is made out because, on the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and gave reasons that support the Tribunal correctly applying the relevant law in the adverse findings which were open to it. There is no basis to find that the Tribunal failed to comply with the requirements of procedural fairness. For the reasons given above, there was no practical injustice suffered by the applicant in the conduct of the review by reason of the s.438 certificate.

45.    No jurisdictional error is made out by ground 1.

Ground 2

46.    Ground 2 alleges apprehended bias by the Tribunal but does not identify any conduct to support that ground. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Further, on the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits.

47.    No apprehended bias as alleged in ground 2 is made out.

Ground 3

48.    In relation to ground 3, the applicant alleged a breach of s.423A of the Act. It is apparent from paragraph 53 of the Tribunal’s reasons that the Tribunal identified taking steps pursuant to s.424AA of the Act in respect of the applicant’s record of interview but then identified in its reasons that it would not place any weight on that omission in the making of its adverse findings. No transcript of the proceedings has been tendered.

49.    There is no basis to find that there was any failure to comply with s.424AA of the Act in respect of the information identified in paragraph 53. No other information has been identified to enliven an obligation under s.424AA of the Act. Further, it is apparent in respect of the information the subject of paragraph 53 of the Tribunal’s reasons that the Tribunal identified taking into account the applicant’s submissions and that the Tribunal formed its opinion without taking into account the matters that had been raised under s.424AA of the Act, as identified at the end of paragraph 57 of the Tribunal’s reasons. No breach of s.424AA of the Act is made out.

50.    To the extent that there is a reference to s.423A of the Act, this concerns the drawing of an adverse inference in respect of a new claim. It is not apparent that s.423A of the Act had any application in the circumstances of the present case.

51.    In respect of sub-s 430(1)(c) of the Act, this refers to the Tribunal setting out findings on any material questions of fact. The Tribunal’s reasons reflect compliance with the requirements of s.430(1) of the Act, including sub-section (c). No failure to comply with sub-ss.430(1)(c) or 430(1)(d) of the Act as alleged in the application is made out.

52.    The Tribunal’s reasons refer to the evidence upon which the adverse findings dispositive of the applicant’s claim were made. For the reasons already given, no breach of the requirement of procedural fairness is made out. The applicant was invited to attend a hearing in accordance with the statutory rules. On the material before the Court, the applicant had a relevant and meaningful hearing during which the Tribunal raised the issues of concern with the applicant.

53.    No jurisdictional error is made out by ground 3.

Ground 4

54.    In relation to ground 4, it is alleged that the Tribunal had predetermined the matter. There is no conduct identified to support any such predetermination. There is a suggestion that the Tribunal cut and paste from the Delegate’s decision. That is entirely inconsistent with the text of the Delegate’s decision and the text of the Tribunal’s decision and is an unsupported allegation that is not made out. There is no basis to find that the Tribunal did other than, as identified above, approach the review with an open mind reasonably capable of persuasion as to the merits.

55.    No jurisdictional error is made out by ground 4.

Ground 5

56.    In relation to ground 5, no evidence has been tendered to support the allegation that the applicant was not given an opportunity to present his case and evidence. The Tribunal’s reasons are entirely inconsistent with that contention and clearly identify the Tribunal having an active engagement with the applicant’s explanation in respect of the issues raised by the Tribunal with the applicant. It is also apparent that the applicant was represented at the hearing. There is no basis to find that the applicant had other than a real and meaningful hearing before the Tribunal and had a proper opportunity to present his claims and evidence. There was no denial of procedural fairness in the conduct of the hearing or the review on the face of the material before the Court.

57.    No jurisdictional error as alleged in ground 5 is made out.

(Emphasis in original.)

The appeal

26    By the appellant’s Notice of Appeal filed on 23 December 2019, the appellant advances one primary ground of appeal, and one alternative ground:

The Tribunal erred and failing [sic] to assess for Convention nexus/complementary protection whether a “period of detention” would amount to significant harm (s36)2A) [sic] or serious harm (s91 R (2) and section 5 of the Migration Act and committed jurisdictional error and/ or failed to consider complementary protection.

Alternatively, the Tribunal fell in to error in that is [sic] applied the incorrect test as to whether the Applicants are likely to suffer harm for the purpose of complementary protection in Bangladesh and applied incorrect test.

Particulars

(i)     The Tribunal found that the applicant is outside his county [sic] or nationality, but the Tribunal did not find that the applicant has right to enter and reside in any country other than his country of nationality.

(ii)    The Tribunal accept [sic] that the applicant’s father’s fish farm was destroyed by the criminals and his family was attacked and a [sic] family dogs was also burnt alive by the miscreants.

(iii)     The other finding of the Tribunal is that the BNP activists and leaders are attacked by AL government/current regime.

27    It was very difficult to determine at hearing whether the appellant was pressing the new grounds raised on appeal or whether he was, in essence, re-asserting certain or all of the grounds of review raised in the FCCA.

28    At hearing, the appellant, in essence, made the following oral submissions as to the basis for the appeal: First, the decision of the FCCA was biased and unfair, and as a consequence the appellant had suffered injustice. The appellant contended an element of the unfairness arose because he “did not have money to hire a lawyer”, and also because the Tribunal found the appellant not to be credible. As to bias specifically, the appellant submitted that the Tribunal “did not believe [his] story” and it “only looked at [the Minister’s] side” of the story, which he submitted constituted bias. Secondly, the appellant has a real fear and a real chance that he will suffer significant harm (including death) if returned to his country. Thirdly, in relation to the “period of detention” which the appellant had referred to in the primary ground (extracted at [26] above), the appellant submitted that he was referring to his detention in two immigration detention centres in Australia for a period of weeks. Fourthly, the reference to the appellant’s family’s fishing business in the Notice of Appeal was an error.

Application for leave to pursue new grounds of appeal

29    It is clear from a review of the appellant’s grounds, when compared with those before the primary judge extracted at [23] above, that these grounds were not claimed below. As such, leave is required to rely upon new grounds raised in this Court on appeal.

30    The appellant is required to seek leave to pursue new grounds of appeal on the basis “it is expedient in the interests of justice”: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319; Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 at [93]–[94]; Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79]. The administration of justice requires that substantial issues between parties are dealt with at trial rather than on appeal, such that those proceedings are not reduced to a “preliminary skirmish”: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7.

31    For the following reasons, leave is refused: The proposed new grounds are devoid of merit.

32    With respect to the primary (new) ground, the appellant claims, in his Notice of Appeal, that the Tribunal failed to assess whether a “period of detention” would amount to serious harm for the purposes of s 91R of the Act or significant harm for the purposes of s 36(2A) of the Act.

33    The applicable versions of ss 36(2) and 36(2A) are extracted as follows:

36    Protection visas—criteria provided for by this Act

…

(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.

(Emphasis in original.)

34    A “refugee” is defined in Art 1A(2) the of the Convention as follows:

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

35    Section 91R of the Act (prior to its repeal) limited what constitutes “persecution” for the purposes of Art 1A of the Convention. The relevant parts of s 91R (as at 1 August 2013) for the purposes of this appeal are extracted as follows:

91R Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

  (b)     the persecution involves serious harm to the person; and

  (c)     the persecution involves systematic and discriminatory conduct.

(2)     Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

  (a)     a threat to the person’s life or liberty;

  (b)     significant physical harassment of the person;

  (c)     significant physical ill treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

  (e)     denial of access to basic services, where the denial threatens the ```    person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

36    As noted above at [28], when the appellant was asked at hearing to identify the relevant “period of detention” the Tribunal had purportedly failed to assess which would amount to “serious harm” (for the purpose of whether the appellant could claim protection under the Convention pursuant to ss 36(2)(a) and 91R of the Act) or “significant harm” (for the purpose of whether the appellant could claim protection under the complementary protection provisions pursuant to ss 36(2)(aa) and 36(2A) of the Act), the appellant submitted that it comprised two occasions when he was in immigration detention in Australia. There is a complete disjunct between this claimed “detention” and the relevant considerations which the Tribunal must take into account with respect to each of these claims. They both concern the assessment of whether the appellant falls within that class of persons to whom Australia has protection obligations. They include, inter alia, the likely future harm the appellant would face if returned to his country of origin. Accordingly, the fact of the appellant having been detained in Australia in immigration detention has no bearing on this determination. 

37    Whilst not submitted by the appellant, a review of the appellant’s representations to the Tribunal revealed that the appellant had claimed to have been kidnapped by the AL and detained. It is possible that such a course of events could be taken into account as to the likelihood of future harm for the purpose of ss 36(2A) and 91R(2) of the Act. However, the appellant’s difficulty is that the Tribunal (at T[58]) did not accept that the alleged kidnapping had occurred and the appellant has provided no foundation for that finding being capable of being challenged on appeal. Accordingly, given the factual premise of the claim was rejected, there can be no error by the Tribunal in not considering whether such detention would amount to serious or significant harm.

38    Alternatively, the appellant claims that the Tribunal erred by applying the incorrect test as to whether the appellant is likely to suffer harm for the purposes of the complementary protection assessment. The appellant provided three particulars in support of the alternative ground: First, the appellant contends that whilst the Tribunal found that the appellant was outside his country, the Tribunal did not find that the appellant has a right to enter and reside in any country other than his country of nationality. Secondly, the Tribunal accepted that the appellant’s father’s fish farm was destroyed by criminals, his family was attacked, and his family’s dog was burnt alive. Thirdly, the Tribunal found that BNP activists and leaders are attacked by the AL.

39    The complementary protection provisions in the Act are found in ss 36(2)(aa) and 36(2A) (extracted at [33] above).

40    The High Court recently explained the statutory task prescribed by the complementary protection assessment regime in DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 (at [11]–[17]):

11.     Section 36(2)(aa), which implemented the regime for “complementary protection” and with which this appeal is concerned, was inserted into the Migration Act to provide an additional basis to s 36(2)(a) for the grant of a protection visa. Section 36(2)(aa) provides:

“A criterion for a protection visa is that the applicant for the visa is:

…

(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.”

12.     Section 36(2)(aa) applies where the applicant does not fall within s 36(2)(a) of the Act and it engages some, but not all, of Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights (“the ICCPR”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”). The provision was introduced to “allow all claims by visa applicants that may engage Australia’s non-refoulement obligations under the [identified] human rights instruments to be considered under a single protection visa application process, with access to the same transparent, reviewable and procedurally robust decision-making framework … available to applicants who make claims that may engage Australia’s obligations under the … Convention”. Importantly, however, s 36(2)(aa) only relevantly captures Australia’s non-refoulement obligations under the ICCPR and the CAT, by which Australia agreed not to return a non-citizen to a receiving country where they would be subjected to the death penalty, arbitrarily deprived of their life or subjected to torture or cruel, inhuman or degrading treatment or punishment: it does not incorporate into domestic law any of the other protections contained within the ICCPR as a basis upon which a protection visa may be granted.

13.     The question s 36(2)(aa) asks is whether the decision-maker has substantial grounds for believing that there is a real risk that a person will suffer significant harm, as defined in s 36(2A) and subject to the matters in s 36(2B) and (2C), as a “necessary and foreseeable consequence” of the person’s return to a receiving country. The inquiry is prospective. There are three elements that must be satisfied for the prospective harm to satisfy s 36(2)(aa): (1) the decision-maker must have substantial grounds for believing (2) that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, (3) there is a real risk that the non-citizen will suffer significant harm.

14.     The circumstances constituting “significant harm” are exhaustively identified in s 36(2A) in the following terms:

“[I]f:

(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.”

15.     The specific harms identified in paras (a) and (b) of s 36(2A), namely, arbitrary deprivation of life and being subject to the death penalty, are intended to give effect to Art 6 of the ICCPR, which prohibits the arbitrary deprivation of life and prescribes when the death penalty may be carried out in countries which have not abolished it. “[T]orture”, in para (c), is defined to mean “an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for specific identified purposes including intimidating or coercing the person or a third person.

16.     In order to fall within para (d) or para (e) of s 36(2A), the acts or omissions constituting “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”, by definition, are considered against Art 7 of the ICCPR. Relevantly, “cruel or inhuman treatment or punishment” means an act or omission by which, among other things, “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” or “pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature”. The other kind of harm —“degrading treatment or punishment”— refers to “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.

17.     The decision-maker must also consider, in the context of paras (c) to (e) of s 36(2A), whether the acts or omissions arise from, or are inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

(Footnotes omitted, emphasis in original.)

41    The alternative ground is also without merit. The appellant made no submissions engaging the first particular. The appellant expressly disavowed his second particular, and made several submissions to the effect that his family did not own a fish farm. Rather, his family owned and operated an “auto car parts business”. In relation to the third particular, namely the Tribunal’s finding that the BNP activists and leaders are attacked by the “AL government/current regime”, the appellant raised this point before the Tribunal, and the Tribunal made findings with respect to the risk faced by supporters of the BNP: at T[59]–T[60].

42    For these reasons, I refuse the appellant leave to rely on the new grounds.

Grounds of review before the FCCA

43    As noted above at [27], it was unclear whether the appellant sought to rely on any, some, or all of the grounds of review pleaded in the FCCA. However, for completeness, to the extent that the appellant is pressing allegations of bias and/or procedural unfairness, those grounds largely mirror certain of the grounds raised in the FCCA.

44    At hearing, the appellant articulated the bias ground as follows:

By saying “biasness” I meant that my life was real – at real risk in my country. So to save my life I travelled to Australia and it was a very risky travel, but still I came to this country to save my life. And when I said all these things, the fact of my life, tribunal did not support my story. Tribunal did not believe my story. So they have only looked at their side. They did not consider my side. And to make a strong legal argument I don’t have financial strength to hire a lawyer. Tribunal didn’t even consider that. So that’s why I said “biasness”.

45    The appellant articulated the denial of procedural fairness ground as follows:

I did not have money to hire a lawyer, to pay a lawyer to assist my case. I – these are the fact of my life. This is my life and I said this but they found it not credible. So this is unfair.

46    I reject the appellant’s allegation of bias. Disagreement with the Tribunal’s decision does not constitute bias and goes to the merits of the appellant’s claim and the Tribunal’s acceptance or denial of the same. An allegation of actual bias is a serious allegation and must be “distinctly made and clearly proven”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69]. There was no identification of any specific aspect of the Tribunal’s decision or process by which it was demonstrated that the Tribunal did not bring an impartial mind to his case, that it was preoccupied or that it was otherwise biased towards him. Accordingly, no claim of actual bias can be made out.

47    Similarly, to the extent that the allegation was one of apprehended bias, it cannot be made out. There was nothing before the Court which demonstrated that a fair minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of its decision: Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223 at [37] (per Rares and Jagot JJ). An inference of bias or prejudgment should not be drawn simply from the fact of adverse findings: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

48    With respect to the appellant’s argument that he was denied procedural fairness as he could not afford a lawyer (one assumes) before the FCCA, the fact that a litigant does not have legal representation does not, on its own, mean that a litigant was denied procedural fairness. In AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30, Flick, Griffiths and Perry JJ held (at [51]–[52]):

51.    For reasons which will shortly emerge, it is unnecessary for us to determine those other grounds of judicial review other than to state that we do not accept the applicant’s contentions that he had a right to publicly funded legal representation as an aspect of the requirements of procedural fairness or, alternatively, was entitled to have the proceeding stayed. Mr Williams was unable to point to any authority to support these contentions. The contentions are inconsistent with High Court authority, including Dietrich at 297-298, per Mason CJ and McHugh J, at 317 per Brennan J, at 330 per Deane J, at 343 per Dawson J, at 356 per Toohey J and at 364-365 per Gaudron J; New South Wales v Canellis (1994) 181 CLR 309 at 328-331 per Mason CJ, Dawson, Toohey and McHugh JJ and see also Thomas v Mowbray (2007) 233 CLR 307 at [111] per Gummow and Crennan JJ.

52.    The fact that the applicant was unrepresented is a factor which may be taken into account, along with others, in determining whether there has been a denial of procedural fairness but we doubt that this factor alone would ever warrant a finding of procedural unfairness in a hearing of the present kind.

49    Here, the appellant made no submission as to how by reason of him being unrepresented before the FCCA, he was denied procedural fairness. Without more, this ground must fail.

Conclusion

50    For these reasons, leave to rely upon new grounds of appeal is refused and the appeal is dismissed with costs.

51    The Minister filed affidavit evidence from Ms Kerrie Pieri, solicitor, affirmed on 29 November 2022, as to its costs and made submissions with respect to them. The evidence contained an itemised account of the work undertaken, the relevant Paralegals, Associate, Senior Associate and Partner who undertook the work, the estimated proportion of the total sum claimed by that person and the total amount of fees. The majority of the work was undertaken by the Senior Associate and Associate. The total estimated fees were $6,042.00.

52    Upon my review of those fees together with the description of the work undertaken to prepare for and attend the hearing, I accept that they are proportionate and reasonable in the circumstances. This includes consideration of the fact that they fall within the amounts permissible under the Scale for a migration appeal: Item 15.2 of Schedule 3 of the Federal Court Rules 2011 (Cth). The Minister sought that their costs be paid on a party/party basis and therefore a 25% reduction is applied to that amount such that the total sum to be ordered comprises $4,531.50.

Associate:

Dated:    20 January 2023