Federal Court of Australia

FGX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 560

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before the Court is an appeal from a judgment of the Federal Circuit Court of Australia (as it then was) dated 25 June 2020 dismissing the appellant’s amended application dated 15 March 2019. By that application the appellant sought judicial review of a decision of the second respondent (“the Tribunal”) dated 11 September 2018 which affirmed the decision of a Delegate of the first respondent (“the Minister”) dated 22 December 2015 refusing to grant the appellant a Protection (Class XA) (Subclass 866) visa (“Protection visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”). For the reasons that follow the appeal will be dismissed.

Background

2    The appellant is a citizen of Bangladesh who arrived in Australia on 13 February 2015 as the holder of a Tourist (Class FA) (Subclass 600) visa. On 12 May 2015, he applied for a Protection visa through his solicitor and migration agent. He was interviewed by the Delegate on 13 October 2015. On 22 December 2015 the Delegate refused to grant the appellant a Protection visa.

3    The appellant applied to the Tribunal for review of the Delegate’s decision on 18 January 2016. A hearing was held on 8 June 2018 where the appellant was represent by his migration agent and assisted by an interpreter. On 13 June 2018 the Tribunal wrote to the appellant pursuant to s 424A of the Act inviting him to comment on or respond to information that might be the reason or part of the reason for affirming the decision under review. The information referred to in that letter (“the s 424A letter”) concerned the appellant’s travel itinerary dated 15 December 2014 and travel arrangements for 12 and 13 February 2015. The appellant responded to the letter on 27 June 2018. On 11 September 2018 the Tribunal affirmed the Delegate’s decision.

The Appellant’s Claims

4    The appellant’s claims were set out in his application for a Protection visa, and an accompanying statutory declaration. Further claims were made by the appellant in written submissions dated 6 October 2015 and in his interview with the Delegate.

5    In his Protection visa application the appellant claimed that he left Bangladesh for the following reasons:

    He is a Hindu and a supporter and member of the Bangladesh Nationalist Party (“BNP”). He began supporting the BNP due to his association with the local Chairman of BNP Ward 78, Mr X.

    In 1998/1999, the leader of the Awami League’s son, Mr A (referred to as Mr X in the primary judge’s reasons), demanded that the appellant play for his cricket club. The appellant refused and decided to play for the Eastern Club, which was associated with a BNP leader, Mr B. This made Mr A angry. When Mr A’s team lost the game, he became angrier and attacked the appellant. The appellant sustained injuries to his shoulder, finger and head.

    In 2000, as a result of Mr A’s influence, the police came to the appellant’s house and asked his brother about the appellant. He continued to face harassment from the police.

    In 2004, the appellant also played for the Brother’s Union at which time the BNP leader, Mr C was the President of the Club. For the 2005/2006 season he played for the Bangladesh Boys Club which is headed by Mr D, another BNP leader.

    In 2005, when the BNP government was in power, unknown people entered the appellant’s home, threatened his father and demanded money from his family. The appellant suspected it was the work of Awami League members.

    The appellant visited the United Kingdom in September 2006 and stayed there until 2013. He applied for a protection visa in the United Kingdom in 2013. In 2013, he returned to Bangladesh and formed a cultural academy (“the Academy”) with the help of Mr X. In 2013, the appellant officially joined as a member of the BNP.

    The appellant was a cricketer and a cricket coach and was involved with the cricket clubs in Bangladesh. He became an Assistant Coach with the Bangladesh Boys Club and also played for that club while it was headed by Mr D. The Presidents of the various cricket clubs which the appellant worked or represented have BNP connections. As a result, Awami League members continued to express their anger toward the appellant.

    In November 2014, the appellant was attacked by a member of the Awami League and his political colleagues at premises where the Academy would meet. They opened fired on the appellant and he sustained injury.

    In January 2015, Mr X was arrested by the authorities in Bangladesh. The Awami League members also made a false allegation against the appellant, with the help of the police, alleging that he had engaged in criminal activities. They also accused him of involvement with the BNP leaders and falsely alleged that the appellant had set fire to a bus in Azimpur.

    After this the appellant decided to leave the country. He wanted to come to Australia to watch cricket matches. After Mr X was arrested, the appellant left his house and went into hiding. The police later went to his house looking for him. He managed to escape from Bangladesh and travel to Australia.

    Due to the continuous harassment of the police and the Awami League members, the appellant’s father became ill and died in July 2015. His family told the appellant that the landlord asked them to leave their home as the landlord also faced harassment from Awami League members.

    The appellant fears that due to his political affiliation and support for the BNP, he will face serious harm if he returns to Bangladesh. He fears he cannot get state protection because the Awami League is in power and considers BNP members to be its enemies. The appellant fears that even if he moves to other parts of Bangladesh, he will continue to face harm because he will continue to support the BNP.

6    These claims were repeated by the appellant in his statutory declaration of 8 October 2015. In a written submission lodged by a migration agent then acting for the appellant dated 6 October 2015, the appellant claimed to fear harm as a Hindu, because of his political opinion in favour of the BNP, and his membership of a particular social group, namely, a cricketer who had political affiliations with the BNP.

7    At the interview before the Delegate the appellant also advanced the following claims:

    In 1999, police searched for him after he had been falsely accused of attempted murder. When police were unable to find him, they detained his brother for four days.

    In 2005, whilst at a temple, the appellant was seen by Awami League members and was threatened by them. A group of men went to his house when he was not home and demanded payment from his parents.

    In 2014, the appellant again refused to play for an Awami League cricket club. He was attacked by 50 to 60 Awami League members because, he believed, he was Hindu and played cricket for the BNP.

The Tribunal’s Decision

8    The Tribunal found that the appellant was not a witness of truth, and that his account of events on which his protection claims were based was false and unsatisfactory. That finding was based on the following:

    The appellant’s visa was granted on 30 December 2014, but he did not depart Bangladesh until 12 February 2015. The Tribunal considered that the appellant’s evidence that he needed to stay in Bangladesh to save money to purchase tickets to attend a cricket tournament in Australia was not consistent with the actions of someone who held a genuine fear of harm.

    As was put to the appellant in the s 424A letter, he had provided a travel itinerary with his visitor visa application that indicated his flight departing from Bangladesh on 12 February 2015, had been booked on 15 December 2014. This was inconsistent with the appellant’s evidence to the Tribunal that he had made no travel arrangements to depart Bangladesh until after police attended his family home in mid-January 2015.

    The appellant’s evidence in his visa application and statutory declaration was that after the arrest of Mr X in early January 2015 (at the earliest), he had left his home and gone into hiding. This was inconsistent with his evidence to the Tribunal that he went into hiding after he was attacked in November 2014.

    The appellant’s evidence to the Tribunal was that the attack in November 2014 was related to a badminton tournament and the work he was undertaking. The appellant had previously made no mention of a badminton tournament, and the account was inconsistent with the one given to the Delegate, namely that the attack occurred because he refused to join the Awami League cricket team.

9    The Tribunal gave no weight to certain documents submitted by the appellant in support of his claims, in light of country information regarding the prevalence of document fraud in Bangladesh, and the Tribunal’s concerns as to the appellant’s credibility.

10    The Tribunal did not accept that the appellant was attacked in November 2014, nor that any of the events he claimed to have followed this had occurred. The Tribunal accepted that the appellant was Hindu, played sport at a high level, was involved with the Academy in Bangladesh, and that he may have had some involvement with BNP. However, on the basis of its credibility findings, the Tribunal did not accept that the appellant had faced harm from the Awami League for these reasons.

11    The Tribunal declined the appellant’s request that it take evidence by telephone from two witnesses in respect of his claims. It accepted that the witnesses would repeat the claims they had advanced in their letters which were before the Tribunal. The Tribunal was of the view that the evidence those witnesses could give would not overcome the serious concerns it had as to the appellant’s credibility.

12    The Tribunal also noted the appellant’s request to take evidence by telephone from a BNP official in Australia, and another BNP official in the United Kingdom, as to the appellant’s involvement in BNP activities in those countries. The Tribunal declined to take evidence from those witnesses, having accepted the appellant’s evidence on this point.

13    Based on the country information before it, the Tribunal found the chance of the appellant suffering serious harm as a Hindu to be remote. Noting that there was no credible evidence about the appellant’s involvement with the BNP when he lived in Bangladesh, the Tribunal was satisfied that his level of involvement with the party in the United Kingdom and Australia was minor and low-level and was not such that there was a real chance that he would suffer serious harm. Nor did the Tribunal accept that he would be involved with the BNP on return to Bangladesh in a way that would lead to him suffering serious harm.

14    The Tribunal found that the appellant did not have a well-founded fear of persecution under s 5J of the Act. Nor did the Tribunal consider that the appellant met the complementary protection criterion.

The Primary Judge’s Decision

15    The primary judge recited the appellant’s claims in some detail and the four grounds of review relied on by the appellant in his amended application.

16    The first ground claimed that the Tribunal denied the appellant procedural fairness by not informing him of various s 438 certificates and, in fact, denying that there were such certificates. The third ground claimed that the Tribunal failed to comply with s 424A or s 424AA of the Act. His Honour rejected the first of these grounds on the basis that the material to which the s 438 certificates related was of no relevance to the appellant’s claims. The notice of appeal filed by the appellant does not challenge that aspect of his Honour’s reasons for judgment. The primary judge also rejected the appellant’s contention that the Tribunal failed to comply with s 424A or s 424AA of the Act. His Honour held that no obligation arose under s 424A of the Act in this case. Again, the notice of appeal filed by the appellant does not challenge the correctness of that finding.

17    The second ground claimed that the Tribunal committed jurisdictional error by not acceding to the appellant’s request to take oral evidence over the phone from witnesses who provided written statements in support of the Applicant’s claims. In dealing with the second ground, the primary judge referred to the following four persons who had provided written statements or letters:

(a)    Mr X from Bangladesh had provided two written statements respectively dated 8 October 2015 and 28 May 2018;

(b)    An advocate of the Supreme Court of Bangladesh had given an undated letter;

(c)    Mr Chowdhury from the United Kingdom had given a letter dated 15 April 2015; and

(d)    Mr Uddin in Australia had given a letter dated 27 May 2018.

18    His Honour also noted that while the appellant gave written notice prior to the Tribunal hearing that he wanted the Tribunal to obtain oral evidence from these persons, he failed to comply with s 426(2) of the Act by giving such notice within 7 days of being notified of the Tribunal hearing date. His Honour observed that failure meant the Tribunal was not strictly bound under s 426(3) of the Act. However, his Honour found that the Tribunal gave what he considered to be real, meaningful and genuine consideration to the appellant’s request that the witnesses be contacted by telephone and that its decision not to speak with them by telephone was not legally unreasonable.

19    His Honour referred to the transcript of the Tribunal hearing and exchanges occurring between the Tribunal and the migration agent representing the appellant at the hearing. His Honour found at [42]:

In my view a fair reading of the above transcript reveals that both the Applicant and his migration agent accepted that there was no necessity for the Tribunal to telephone the witnesses, as the witnesses had put in their written letters what they wanted to say and that the Tribunal’s offer to allow a further period for those witnesses to put in extra written statements was declined.

20    This is plainly true of Mr Chowdhury and Mr Uddin who provided letters concerning the appellant’s involvement with BNP in the United Kingdom and Australia. They did not refer to any involvement of the appellant with the BNP while he was in Bangladesh.

21    His Honour also noted at [43] that the Tribunal stated in its reasons at [34] that it declined the request to take evidence from two other persons. This was a reference to Mr X and Mr Bhouyan whose statements concerned the appellant’s involvement with the BNP in Bangladesh and the possibility that the appellant may be arrested and convicted in what (I infer) the appellant would characterise as a false prosecution. The Tribunal stated that it was willing to accept that these people would repeat the claims they made in the written statements which the appellant submitted to the Tribunal. However, the Tribunal went on to say that this evidence “does not persuade the Tribunal to overlook the concerns it holds about the appellant’s credibility”. The Tribunal then referred to reasons given by it for rejecting the appellant as a credible witness.

22    With respect to ground two, the primary judge said at [44]-[45]:

44.    In my view this Ground fails to establish that the Tribunal committed jurisdictional error by not taking evidence over the telephone from the nominated witnesses. The Tribunal gave real and genuine consideration as to whether or not it should contact the nominated witnesses by telephone. Its reasons for not proposing to do so, or being reluctant to do so, were not legally unreasonable in the circumstances. Those circumstances included the Applicant’s implicit withdrawal of the request that the Tribunal ring the nominated witnesses, and acceptance of the fact that they had said all that they could in support of his claims and that there was no further need for them to supplement or amplify their written statements by further written statements.

45.    Further, the Tribunal was entitled to take the view that any corroborating evidence of the nominated witnesses would not overcome the Tribunal’s root and branch rejection of the Applicant’s claims. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 it was argued that the Tribunal had erred in giving no weight to corroborating evidence because it had found that the Applicant’s evidence lacked credibility. Gleeson CJ (in the majority) rejected that argument, reasoning as follows (at 63 [12]):

[12]    It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

23    His Honour went on to conclude that the Tribunal’s exercise of its discretion not to take oral evidence over the telephone from the relevant witnesses was not legally unreasonable. In that regard, his Honour referred to the analysis undertaken by Wigney J of s 426 of the Act in BOX16 v Minister for Immigration and Border Protection [2020] FCA 801 (“BOX16”).

24    The fourth ground claimed that the Tribunal failed to consider relevant considerations or failed to provide realistic considerations of the appellant’s claims. The appellant contended (inter alia) that the Tribunal failed to consider the appellant’s claim that he fell within the particular social group of being a cricketer who has political affiliations with the BNP and that the Tribunal did not consider the appellant’s claim in relation to his political opinion against the Awami League (and only considered the claim in relation to his support for the BNP). His Honour found that the Tribunal comprehensively rejected the appellant’s claims that he would suffer harm in Bangladesh on the basis of any further involvement with the BNP or because he was a sportsman, and that the Tribunal did not fail to consider the appellant’s claims about fear of harm from the Awami League.

Grounds of Appeal

25    The grounds of appeal relate to what were the second and fourth grounds relied upon before the primary judge. The grounds of appeal as set out in the appellant’s notice of appeal are as follows:

1.    With respect to [the primary judge] I continue to believe that his judgment is infected by error of law as His Honour failed to accept that the Tribunal's decision refusing to take evidence from witnesses is unreasonable despite the repeated request by my Representative. The Tribunal hearing and decision was made on assumptions because the Tribunal Member said that he would just assume that the witnesses would just repeat what they have said in their statements. Such is an assumption by the Member of the Tribunal and a denial of natural justice and fairness because an oral evidence from a witness should be taken as a valuable and reliable to support my claim.

2.    Therefore the Member of the Tribunal as a decision maker made an error of law as also failed to consider my position as a person belonging to particular social group, cricketer who has political affiliation and political opinion against the Awami League and the Tribunal failed to consider my political opinion which is the subject of my fear of harm in Bangladesh and the reason for applying for a protection visa.

3.    The Tribunal Member as well as His Honour failed to understand that I have a genuine well founded fear of harm if I return back home to Bangladesh and both misunderstood the genuine fear and concentrated on credibility issue which is irrelevant in this case because I am a well known and highly respected person and there are no strong reasons for the Tribunal to attack my credibility.

(errors in original)

26    In his submissions the Minister contended that ground 3 merely invites impermissible merits review. I agree with the Minister’s submission and do not think that ground 3 raises any arguable ground of appeal.

Consideration

27    Section 426 of the Act provides as follows:

426    Applicant may request Tribunal to call witnesses

(1)    In the notice under section 425A, the Tribunal must notify the applicant:

(a)    that he or she is invited to appear before the Tribunal to give evidence; and

(b)    of the effect of subsection (2) of this section.

(2)    The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

28    As the primary judge pointed out, the appellant did not give notice within seven days of notification as required by s 426(2) of the Act. Even if such notice had been given, it is clear from s 426(3), that the Tribunal is not obliged to receive oral evidence, but that in deciding whether or not to do so, it must have regard to the appellant’s wishes. In the present case, notwithstanding that notice was not given within seven days, the Tribunal considered the appellant’s request and, in doing so, took into account the appellant’s wishes.

29    As I have mentioned, the primary judge found that the appellant had, during the course of the hearing before the Tribunal, implicitly withdrawn his request that the Tribunal make telephone contact with the witnesses. There may be some scope to debate the correctness of that proposition. However, that is not the basis on which the Tribunal did not contact the witnesses. As it explained in its reasons at [34]-[35]:

34.    The representative asked the Tribunal to take evidence by telephone from [Mr X] and an advocate who purportedly provided a letter advising the applicant there was a case filed against him and police wanted to arrest him. The Tribunal declined the request to take evidence from these two individuals. The Tribunal was willing to accept that these people would repeat the claims they made in their letters which the applicant submitted to the Tribunal. That evidence does not persuade the Tribunal to overlook the concerns it holds about the applicant’s credibility which significantly discredit him as a witness. If the account of events on which the applicant’s protection claims was true, whether or not these witnesses in Bangladesh give evidence purporting to corroborate that account, the applicant himself would have given the Tribunal a consistent and credible account. For the reasons given above, the applicant has failed to do so.

35.    Because the applicant is not a witness of truth, the Tribunal disbelieves the applicant’s claims about being attacked in November 2014 at the Academy and all events thereafter including the arrest of [Mr X], the applicant being named in a false case and the police going to his family home to locate him. The Tribunal finds that the applicant may have been involved with the Academy and had some involvement with the BNP. However, because the applicant is not a witness of truth, there is no credible evidence as to what this was. Because he is not a witness of truth the Tribunal also disbelieves the applicant’s claims about suffering harm from the Awami League before he travelled to Great Britain in 2006. The applicant may well have (unsuccessfully) applied for protection in Great Britain but that does not persuade the Tribunal to accept as credible the account he advances about suffering harm in Bangladesh before he travelled to Great Britain.

(footnotes omitted)

30    Further, with respect to the request that the Tribunal take evidence from BNP officials in Australia and the United Kingdom regarding the appellant’s activities in those countries, the Tribunal said at [36] that it did not take that step because it accepted the evidence that the appellant gave at the hearing about what those activities were in Australia and the United Kingdom.

31    In those circumstances, it is difficult to see what purpose would have been served in making telephone contact with them. In any event, it was a matter for the Tribunal to determine whether to take evidence from them orally. It is clear that the Tribunal’s decision not to do so was, in the case of Mr Chowdhury and Mr Uddin, based on the fact that the Tribunal accepted what they said in their letters. However, the decision not to do so in the case of Mr X and the advocate was largely informed by inconsistencies in the appellant’s own evidence which led the Tribunal to conclude that he was not a truthful witness including, in particular, inconsistencies in his evidence concerning travel arrangements made by him prior to this departure for Australia and events which he claimed triggered his decision to leave Bangladesh. The evidence from those persons was, as the Tribunal observed, not sufficient to persuade the Tribunal that the appellant was a credible witness or that his account of events was truthful.

32    In my view, there was nothing irrational, or illogical, or unreasonable about the Tribunal’s decision not to telephone the witnesses for the purposes of having them give oral evidence. There was nothing in the letters or statements of the witnesses to suggest that anything they might say could explain away the various inconsistencies in the appellant’s evidence.

33    In his written submissions, the appellant referred to the decision of Federal Magistrate Driver (as he then was) in SZOGI v Minister for Immigration and Citizenship [2010] FMCA 390. However, that was a case in which the Tribunal was found to have made a jurisdictional error by failing to consider the wishes of the applicant for review when considering his request to call witnesses. It was not suggested in this case that the Tribunal failed to consider the appellant’s wishes. Clearly it did so. Accordingly, the appellant’s first ground of appeal fails.

34    With regard to the second of the appellant’s grounds of appeal, the appellant’s claim is that the Tribunal failed to consider whether the appellant was a member of a particular social group (ie. cricketers with political affiliations and holding political opinions against the Awami League). It is true that the Tribunal did not consider whether or not there was any such social group. In the circumstances of this case it was not necessary for the Tribunal to do so given that the Tribunal at [45] made a finding that the risk of the appellant suffering serious harm on return to Bangladesh was remote: SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78].

Disposition

35    The appeal will be dismissed. The appellant must pay the first respondent’s costs of the appeal.

36    Orders accordingly.

Associate:

Dated:    2 June 2023